English Haven Ltd v The Registrar of Lands et al

IN THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE ANTIGUA AND BARBUDA CLAIM NO: ANUHCVl2007/0277 BETWEEN: ENGLISH HAVEN LIMITED Claimant THE REGISTRAR OF LANDS First Defendant ANGLO SWEDISH DEVELOMENTS LIMITED Second Defendant ATTORNEYGENERAL OF ANTIGUA AND BARBUDA Third Defendant Appearances: Mr. David Cocks, QC and with him Mr. David Walbank and Mr. Trevor K. Kendall for the Claimant, Mr. Justin Simon, QC and with him Ms. Alicia Aska for the first and Third Defendants, Mr. Dexter Wason for the Second Defendant. 2009: ~ober12, 13, 14,29 2010: January 12 1 — , I I I 4i: {11 Thomas J. (Ag.): On 12th October, 2007 the Claimant, English Haven Limited, filed a fixed-date claim form seeking certain remedies with respect to property against the defendants bring the Registrar of Lands, First Defendant, Anglo Swedish Developments, the Second Defendant and the Attorney General of Antigua and Barbuda, the Third Defendant.

[2]In its statement of claim,1 the Claimant contends that it was incorporated under the Laws of Antigua and Barbuda on 23mJanuary, 1997, with two directors, Philip Trevor English and Douglas Gordon Nicholas; and was so incorporated to take over ownership and management of the villa and land previously known as and recorded in the Land Registry as: Registration Section: English Harbour; Block: 35 2479A; Parcel 58 and situated at Galleon Beach, English Harbour from the Second Defendant. [31 As far as the Second Defendant is concerned, the Claimant avers that it was also incorporated in October 1989 with the initial business of purchasing and developing two parcels of land recorded in the Land Registry as: Registration Section: English Harbour; Block: 35 2479A; Parcel 56 and the above-mentioned Parcel 58 both situated at Galleon Beach, English Harbour. It is also pleaded that after the purchase of Parcels 56 and 58 by the Second Defendant a villa was built on each such parcel and that parcel as developed constituted the sole assets of the Second Defendant.

[4]As far as the directors of the Second Defendants are concerned, it is pleaded that initially they were Philip English and Bjorn Magnusson, but at the date of the filing of this claim Inger Magnusson, wife of Bjorn Magnusson, was the sole director of the company. {5] In terms of the relationship between Claimant and Second Defendant is concerned, the Claimant pleads that at the annual general meeting of the Second Defendant held on 10th June, 1996, Bjorn Magnusson announced his intention to terminate his association with, relinquish his interest in the business of the Second Defendant and to sell both houses. In this regard, it is further pleaded that 1 Filed on lih October 2007. between 10th June, 1996, and 14th November, 1997, “the parties entered into an agreement, the essential part of which was that the business of the Second Defendant should be re-organised so that Parcel 56 was retained by the Second Defendant and Parcel 58 … was to be transferred a [new] company to be incorporated for the purpose … following which the shareholding in respectively the Second Defendant and the new company would be re-organised so that all the shares in the Second Defendant would be held by Bjorn Magnusson and Inger Magnusson and all the shares in the new company would be held by Philip English and Gordon Nicholas”. The Claimant avers that the agreement reached was partly oral and partly in writing and a number matters are identified in this regard.2

[6]In connection with the condition of Parcel 56, the incorporation of the new company and the finalization of the agreement reached a nurnber of events are pleaded by the Claimant: 1. Philip English and Bjorn Magnusson travelled together to Antigua in January 1997 in order to verify the condition of Parcel 56. 2. The new company was incorporated on 23rd January, 1997, with the, name English Haven Limited. 3. In connection with the finalization of the agreement, the agreement in or about 1st October, 1997, Philip English travelled to Antigua with the knowledge, authority and consent of Bjorn Magnusson and Inger Magnusson for the express purpose of obtaining replacement land certificates for Parcels 56 and 58. 4. On or about 8th October, 1997, Philip English returned to the UK with replacement land certificates in respect of Parcels 56 and 58, 5. At the meeting held on 14th November, 1997, (referred to at sub-paragraph 7(b) (vi) of the statement of claim) Philip English furnished Bjorn Magnusson and Inger Magnusson with the certificates for Parcel 56 and English retained within the company’s records of the Claimant the certificate for Parcel 58. 6. At all material times thereafter, the business of the Second Defendant has been limited to the holding of freehold title absolute of Parcel 56. Such limitation was expressly reftected in the articles of the Second Defendant by an amendment of the same in or about August, 1998. 7, In or about January, 2004, Parcel 56 was sold by the Second Defendant to one William Frost; and the replacement certificate for Parcel 56 [obtained by Philip English] was 2 At paragraph 7(al and 7(b){i) to (vi) ofthe statement of claim. I , , j I referred to and relied upon by the Second Defendant in order to establish its ability and entitlement to transfer good title to Parcel 56. I 8. On or about 15th March, 2005, Bjorn Magnusson and Inger Magnusson fraudulently ! procured from the First Defendant the issue of afurther land certificate for 58 (by this time transmitted to Parcel 97). 9. In or about January 2007, Bjorn Magnusson and Inger Magnusson gained lawful entry to Parcel 58, wrongly took possession of the same, and thereafter sought to justify their unlawful acts by making aclaim of right based on the old land certificate which they knew to be inaccurate and invalid. 10. At all material times from about November 1997 until January 2007, and pursuant to the agreement, the sole business of the Claimant has been to hold the freehold title absolute of Parcel 58 (now Parcel 97) and deal with it accordingly (including maintaining it, paying all outgoings and renting it out on short lets for visitors to Antigua).

[7]In the premises, the Claimant contends that the events that have happened, the agreement that title to Parcel 58 (now Parcel 97) should be transferred to the Claimant is enforceable even in the absence of the statutory formality in that the conduct of the parties herein is consistent only with the execution and substantial performance of the said agreement. Further, or in the alternative, the words and conduct of Bjom Magnusson and Inger Magnusson for and on behalf of the Second Defendant constituted unequivocal and unambiguous representations that the Claimant is the proprietor of Parcel 58 and the Claimant acted upon those representations to its detriment in undertaking the management of, and making payment for the outgoings of, the property. The Claimant contends further that the Second Defendant is estopped from denying the Claimant’s title. Further or in the further alternative, in the events that have happened the Second Defendant holds the Parcel 58 on trust for the Claimant in circumstances in which legal title should forthwith be transferred to the Claimant.

[8]The remedies claimed by the Claimant are as follows: (i) Adeclaration that the Claimant holds good title to the parcel of land at Galleon Beach, English Habour known as Registration Section: English Harbour; Block 35 2497A; Parcel 97 (formerly Parcel 58); (ii) Further or in the alternative, adeclaration that the Second Defendant holds the parcel of land situated at Galleon Beach, English Harbour know as Registration Section: English / j Harbor; Block 35 2497A; Parcel 97 (formerly Parcel 58) on trust for the Claimant in circumstances in which title should forthwith be transferred to the Claimant. (iii) An order for rectification of the parcel register, so as to record the Claimant as the I proprietor of the parcel known as Registration Section: English Harbour; Block: 352479A, i Parcel 97 (formerly Parcel 58); I (iv) An order for delivery up of the parcel of land at Galleon Beach, English Harbour known as Registration Section: English Harbour; Block: 35 2479A; Parcel 97 (formerly Parcel 58) to be authorized representatives of the Claimant; (v) Damages against the Second Defendant for loss of use of and revenue from the Villa situated on the parcel of land at Galleon Beach, English Harbour known as Parcel 58 (now Parcel 97); (vi) An indemnity from the First and/or Third Defendants in respect of the damage suffered by the Claimant as a result of the wrongful registration on the Land Register of title to Registration Section: English Harbour; Block: 35 2479A; Parcel 97 (formerly Parcel 58). (vii) Costs against the First and/or Second and/or Third Defendants. Defence of the First and Third Defendants.

[9]In their defence, the First and Third Defendants make no admission concerning the Claimant’s averment relating its incorporation and shareholders. However, as it is admitted that Cecile Hill was the Registrar of Lands from February 2002. The matters pleaded by the Claimant concerning the Second Defendant relating to its business, ownership of two parcels of lands at Galleon Beach, an agreement concerning the said lands and the subsequent sale of one of the said parcels are all denied by the Defendants. In this context, it is pleaded that the amount of US$12,OOO.00 did not constitute sums which were payable to the Land Registry for the provision of replacement certificates on that such sum was received by any member of the Land Registry staff in the due and lawful performance of its duties.

[10]With respect to Parcel 56, the First Defendant contends that a new land register for trlis parcel was created by the Land Registry in or around December 2003 on the confirmed discovery that the original land register for that parcel was missing from the Land Registry files. And with respect to the said Parcel 56 the Defendants contend that it was transferred to William Frost in January 2004 5 I … upon presentation to the Registry of an Instrument of Transfer with the Second Defendant as transferor.

[11]Concerning the contention by the Claimant that Bjorn Magnusson and Inger Magnusson fraudulently procured from the First Defendant a further land certificate relating to Parcel 58 no admission is made by the First and Third Defendants. It is contended however that upon discovery that the land register in respect of Parcel 58 was also missing and that there was on file a pending Mutation Form No. 300/91 applying for the alternation of the boundaries of Parcels 58 and Parcel 90 which was owned by Galleon Beach Limited whereupon, tile First Defendant processed the Mutation Form. And with respect to the said Parcel 58, the First Defendant contends that as a result of the processing it was issued a new parcel number, being 97, and the Land Certificate in the name of Anglo Swedish Development Ltd., (the Second Defendant) was issued to their solicitors, Hill and Hill.

[12]The Claimants pleadings concerning the conduct of Bjorn Magnusson and Inger Magnusson in relation to Parcel 58 and consequences flowing therefrom and denied by the First and Third Defendants. And regarding the misplacement or loss of the original land registers, the First and Third Defendants aver that such misplacement or loss raise issues of irregularity, by both the Claimant and the Second Defendant and person or persons in the Land Registry who acted without lawful authority or authorization. Defence of Second Defendant.

[13]In its defence, the Second Defendant admits the pleadings by the Claimant,3 English Haven Limited and also regarding the Registrar of Lands at the material time.4 However, as regards the averment relating to Bjorn Magnusson the contention is that this incorrect, misleading and totally irrelevant to the claim made by the Claimant” since, inter alia the company of which Bjorn 3 As pleaded at paragraph 1+3 of the Statement of Claim. 4 As pleaded at paragraph 2 of the Statement of Claim. t Magnusson is a shareholder was incorporated in Sweden and the difficulties are also confined to Sweden.

[14]Contrary to what is pleaded by the Claimant regarding directors of the Second Defendant, the Second Defendant says that Philip English was not the sole director of the Second Defendant as Timothy English, the son of Philip English, was appointed a director on 16th February, 1995, and removed from that office on 14th November, 1997.

[15]The matter of the agreement between Philip English on the one hand and Bjorn Magnusson and Inger Magnusson on the other as pleaded by the Claimant is addressed5 by the Second Defendant; and in essence contends that the agreement exists but its terms remain substantially unperformed and is now void.

[16]In so far as the issue of Philip English’s travel to Antigua, in order to obtain replacement Land Certificates for Parcels 56 and 58, this is denied by the Second Defendant. Also denied are the Claimant’s pleadings regarding the meeting of 14th November, 1997, between Philip English, Bjorn Magnusson and Inger Magnusson with respect to the replacement admitted that Philip English did obtain a replacement certificate for Parcel 56, but according to the Second Defendant “at no time did he [Philip English] mention to Bjorn and Inger Magnusson that he had purported to transfer the then Parcel 58 to the Claimant.”

[17]In matters of the amendment of the articles of the Second Defendant and the sale of Parcel 56 to William Frost on technical grounds are denied by the Second Defendant is the Claimant averment that in or about 15th March, 2005, Bjorn Magnusson and Inger Magnusson fraudulently procured from the First Defendant the issue of afurther land certificate for Parcel 58.

[18]While admitting the functions performed by Philip English, as property manager in relating to Parcel 58, the Second Defendant advances as to why the conduct of the parties is not consistent with the 5 At paragraph 6 of its defence. • . .. execution and substantial performance of the agreement referred to at paragraph 6 of the statement of claim.

[19]With respect to the agreement dated 18th February, 1997, referred to at paragraphs 17 and 18 of the statement of claim, the Second Defendant contends that the time limit for completion and the extension thereof were never met. And the Second Defendant also advances reasolls as to why the said agreement is now void and unenforceable. Reasons are also pleaded as to why the transfer of Parcel 58 to the Claimant was invalid.?

[20]Finally, the Second Defendant contends that the claims made by the Claimant and the relief sought in paragraphs (i) to (vii) of the Claimant’s prayer contained in its statement of claim must be dismissed in their entirety.

Counterclaim

[21]The Second Defendant’s counterclaim is pleaded in these terms: 1. The Second Defendant repeats paragraphs 1-19 of the Defence filed herein and claims for (a) Adeclaration that the Agreement if 18th February, 1997, is void and of no effect. (b) Adeclaration that the Second Defendant holds good title to the parcel of land at Galleon Beach, English Harbor know as Registration Section: English Harbour; Block: 35 2479A; Parcel: 97 (formerly Parcel 58). (c) Adeclaration that the entry in the Land Register and land certificate purporting to confer legal title to the parcel of land at Galleon Beach, English Harbour, Block: 35 2479A; Parcel 97 (formerly Parcel 58), to the Claimant is void and invalid and of no effect. (d) Costs against the Claimant. (e) Such further or other relief as this Honourable Court may deem fit.” 6 At paragraph 16 of the Defence. 7 At paragraph 17 of the Defence. Defence to counterclaim of Second Defendant.

[22]The Claimant’s defence to the Second Defendant’s counterclaim is in these terms: (1) The Claimant repeats paragraphs 1to 18 of the statement of claim. (2) Save as otherwise expressly appears in the Statement of Claim and save insofar as the Second Defendant’s Counterclaim consists of admissions, the Counterclaim is denied. (3) In the premises, it is deemed that the Second Defendant is entitled to the relief claimed or any relief for the reasons alleged or at all The Evidence Lydia Hatton

[23]In her affidavit filed on 11th December, 2008, Lydia Hatton deposes that from 1989 she has worked for Philip T. English International Financial Services Limited, a financial services company of approximately 30 years standing. She deposes further that the date of the commencement of her said employment coincided with the start of a venture by Philip English and one Bjorn Magnusson to develop two lUxury propelties at parcels 56 and 58 Galleon Beach, English Harbour, Antigua and the incorporation in this connection of an Antiguan company called Anglo Swedish Development Limited.

[24]According to Lydia Hatton, she has worked closely with Philip English assuming increasing responsibilities both within Philip T. English International Services Limited, generally and specifically in relation to the administration of Anglo Swedish Development Limited and, more recently, acompany called English Haven Limited.

[25]It is the witness’ evidence that when in mid-January, 2007 Bjorn and Ingrid Magnusson took possession of the property known as The English Haven on Parcel 58, Galleon Beach. She took primary responsibility for researching and collating the contemporaneous records relating to the history of the venture at Galleon Beach for the purpose, initially, to asserting English Haven Limited’s title to the property and then for the purpose of legal proceedings instituted by that company in Antigua. Finally, the witness deposes that her Exhibit “LH1” is a bundle of the relevant contemporaneous records of English Haven Limited and in some instances from documents supplied Aubrey Kay, a specialist in company law matters and a long-time adviser to Philip English in such matter.

[26]Ms. Lydia Hatton was not crossed-examined on her affidavit.

Timothy Paul Jackson

[27]Timothy Paul Jackson in his affidavit filed on 11th December, 2008, gives his occupation as bookkeeper and his address as 98 Parklands, Bambury, Oxon, England, And he deposes that since 1990 he has been the internal bookkeeper for Philip 1. English International Financial Services Limited and its associated companies called respectively Anglo Swedish Developments Limited and English Haven Limited. He says that in that capacity he has been responsible for keeping the internal accounts and books of these companies.

[28]The deponent deposes further that during the period 1997 to date when he had the responsibility for the books and accounts of Anglo Swedish Developments Limited all income and expenditure relating to the development of the properties at Parcels 56 and 58, Galleon Beach, English Harbor, Antigua and the management and operation of the properties following completion; were property accounted for in the books and accounts of the companies concerned,

[29]It is also Mr. Jackson’s contention that since late 1997 English Haven Limited and Philip T. English International Services Limited have, between them, borne, the entire financial cost of operating and managing Parcel 58 throughout the nine-year-period until the Magnusson’s went into operation of that property in January 2007. 10 .. [301 In cross-examination by learned counsel, Mr. Dexter Wason, the witness testified that between 1990 to 1997 he prepared books for Anglo Swedish Developments Limited which would have been similar to those prepared for the annual periods or annual statements. According to Mr. Jackson, it is a profit and loss and balance statement. It is also his testimony that during the said period 1990 to 1997 he would have expected that the statements would have been forwarded to Anglo Swedish Developments Limited. [311 In reference to page 62 of Bundle C, Mr. Jackson said that it is his recollection that Aubrey Kay gave him the figures and these were used to prepare the balance sheets. According to Jackson, Mr. Kay is an individual who is skilled in accounts and law. Insofar as the net worth of Anglo Swedish is concerned, it is Mr. Jackson’s testimony that it was $517,996 at 14th November, 1996. He testified further that profit and loss was minus $507,996 which means that there were loans as at 31 st December, 1996 and the $507,996 would have been taken into account. (32J With respect to English Haven Limited, Mr. Jackson’s evidence is that he prepared a balance statement as at 14th November, 1997, based on figures supplied by Mr. Kay. At that time, he says, the company was minus $28,799.80. Mr. Jackson went on to testify that with regard to the operation of Parcel 58 prior to 1997, that the costs would have come from various sources such as income generated and loans. [33J Mr. Jackson was not re-examined. Philip T. English [34J In his affidavit filed on 9th October, 2007, Philip T. English deposes that he was involved in the setting lip of Anglo Swedish Developments Limited and English Haven Limited, and at present Douglas Gordon Nichols directors and shareholders of the latter company.

[35]As far as ASD is concerned, English deposes that business of the company was to purchase and develop two Parcels of land, 56 and 58, at Galleon Bay Beach, English Harbour and developing them. And further, Bjorn Magnusson and himself were shareholders/directors of this company and were responsible for the building on the parcels and financing thereof, respectively.

[36]Mr. English details the circumstances giving rise to the splitting up of ASD and events that took place before an agreement in this regard was reached. The essence of which was that ASD would retain parcel 56 and the newly incorporated company, English Haven, would have Parcel 58 and he would relinquish his interest in ASD.

[37]The matter of the land certificate for the two parcels as also addressed by Mr. English and the efforts he made to secure replacements, including the financial involvement of the Magnusson’s in this venture.

[38]The circumstances of the sale of Parcel 56 by the Magnussons are detailed by the deponent as well as the consequences and implications of that sale in 2004 in relation to the wider agreement.

[39]In cross-examination by learned senior counsel, Mr. Justin Simon, a.c., Mr. English testified that there were two parcels of land that belonged to Anglo Swedish Developments. According to him in 1997, Parcel 58 had a charge in the amount of $100,000.00 in favour of Swiss American Bank. It started at $80,000.00 and increased to $100,000.00. He testified that the amount was repaid. Testifying further, Mr. English said that the land certificate for Parcel 58 was handed to the company secretary for passage to the bank in order to get the loan; but he could not say if a charge certificate was prepared. He said that he, however, believed that the loan was noted on the Land Register. ..

[40]In reference to page 603 of Bundle C, Mr. English testified that it showed a charge in favour of Swiss American Bank on 4th January, 1989, but he contended that the operative loan was that of 1993 in the amount of $88,000.00 which by 1997 had been IiqlJidated.

[41]As far as the land cerUFIcate is concerned, Mr. English testified that the company was able to obtain this document after three attempts but it showed $10,000.00 against the company. He said that he represented a collection fee for Mr. Donald Halstead which the bank said had to be paid by the cornpany in order to get the certificate. Mr. English said that in the circumstances help was sought for attorney-at-law Mr. Dane Hamilton. He went on to say that since the process was taking a long time, it was referred to Mr. Aubrey Kay who then took up the matter with Price Waterhouse, which did not produce any results. [42J It is Mr. English’s evidence that verbal contact was made with Senator Guy Yearwood who suggested that there were two persons at the Land Registry who could assist. Mr. English however pointed out that he did not know what position these persons held. According to Mr. English, one of the persons contacted was Mr. Gilead at the Land Registry and to whom he wrote on 11th July, 1997, which letter is at page 344 of Bundle C. He went on to say that it was his understanding that Mr. Gilead would sort out the matter as he (Gilead) indicated that he could assist; and asked for afee of US$12,000.00.

[43]On being questioned as to why he did not go to an attorney-at-law, Mr. English said that Senator Guy Yearwood was no stranger as he knew him for many years and he was afamily friend. [44J With respect to specific issues identified in the letter 11th July, 1997, Mr. English testified as follows: 1. The certificate: Mr. English said that Mr. Gilead did not tell him how he was going to do this in relation to Parcel 56 Galleon Beach, 2. Removal of the caution on Parcel 56 Galleon Beach – Mr. English said that he did not send any document in relation to the caution placed by Swiss American Bank. 3. Stamping of transfer document: According to Mr. English, the fee would have included this amount.

[45]In relation to the documents appearing at pages 356 to 358 of Bundle C, the witness testified that these are the draft transfer documents he brought to Antigua and handed then to Mr. Gilead, as he was not sure which one was to be used. Mr. English went on to say that the draft at page 358 was used which has the Land Registry stamp, dated 2nd September, 1996. He added further that Mr. Gilead inserted the figure of $50.00 which was not given to him, nor was a valuation provided. Still further, Mr. English testified that at the top of the document there is a number “4073/1996/1 which was not there as part of the original document. Also that the Inland Revenue stamp is shown which is affixed when the stamp duty is paid. He said, however, that he did not deal with the stamp duty aspect. On this issue, Mr. English concluded by saying that he collected an envelope with lots of documents from Mr. Gilead and he was paid cash at his home.

[46]In relation to the documents appearing at appearing at pages 361 and 362 of Bundle C, Mr. English said that there are two of the documents collected from Mr. Gilead bearing No. 406911996 in relation to Parcel 56 and 4076/1996 in relation to Parcel 58. According to him, the date at the bottom is 2nd September, 1996, in relation to transfers in 1997. He said that this raises lots of questions as the company had not yet been formed which was formed by Hill and Hill.

[47]Regarding the letter at page 506 of Bundle C, Mr. English testified that the said was sent by him without any records with respect to Parcel 58; that a reminder (at page 526) was sent on 7th June, 2005, and response came from the Registrar on 28th September, 2005. In that letter, the Registrar informed him that Parcel 97 was registered in the name of Anglo Swedish Developments Limited and the parcel number had been changed from Parcel 58 when an altercation was done by mutation were supplied to him by Mr. King, a land surveyor.

[48]In relation to the document appearing at page 602 of Bundle C, Mr. English said, on being cross­ examined thereon, that he could not say whether or not this was handed to him. According to him, · , it is the official record of the Land Registry and the last entry is dated 2nd September, 1996, bearing Instrument No. 4073/1996 with English Haven as proprietor. He added, however, that no instrument was filed on the date of 2nd September, 1996. And it is his further testimony that he would not be surprised to know that this Land Register does not appear at the Land Registry.

[49]With respect to entry No.3, 4041/1996 on the Land Register, Mr. English said that it was acaution which is supposed to represent an instrument. He then added: “I did not give Mr. English an instrument. I think Mr. Gilead knew that it was an unlawful instrument.”

[50]In relation to page 603 of Bundle C, Mr. English noted that there is a charge in favour of Swiss American Bank and an instrument bearing No. 4070/1996 discharging that charge. He went on to say that he did not give Mr. Gilead any such instrument. It was then put to Mr. English that Mr. Gilead facilitated the creation of a Land Certificate without following the normal procedures in relation to Parcels 56 and 58 for the slim of US$12,000.00. Mr. English agreed.

[51]On the matter of the signatures on the document appearing at page 358 of Bundle C, Mr. English identified them as belonging to him on behalf of both companies – English Haven Limited and Anglo Swedish Developments Limited which in turn relates to the agreement of 18th February, 1997.

[52]On being cross-examined by learned counsel, Mr. Dexter Wason, Mr. English was referred to page 307 of Bundle C, and he responded by saying that he saw the agreement and that it is his position that the terms were substantially fulfilled. He added that he agreed with the context of clause 8 of the agreement conceming the transfer of liabilities.

[53]On the question of the completion of the agreement, it is Mr. English’s testimony that this was fixed at 31 st March, 1997, which was extended to 14th November, 1997, and that by this date the agreement had been substantially fulfilled. 15 . .

[54]On the matter of the liabilities of ASO. Mr. English was cross-examined in this regard and he testified that the only thing that mattered in terms of the agreement was the loan of US$170.000.00. It was then put to the witness that as of 14th November. 1997, ASO had charges in excess of one million dollars to which Mr. English responded by saying that the only liabilities they had were the two which he had mentioned.

[55]With respect to the balance sheet of English Haven as at 14th November, 1997, Mr. English said that he saw that twelve years ago but couldn’t remember the figures. He also agreed that the said balance was prepared by Mr. Jackson of which he had no first-hand knowledge of that part of the company’s accounts. However on being referred to pages 620 and 621 of Bundle C, Mr. English agreed that ASO had liabilities of $600,000.00 more than English Haven.

[56]With respect to the matter of the preference shares, Mr. English testified that none were issued. According to the witness these shares were supposed to deal with a request from the Magnussons, to deal with any disarray in the deal and the wish of the Magnussons to have use of English Haven for 5 years but was not sure of the number of times. And in the context it was put to Mr. English that the Magnussons had use of English Haven for 6 years. His response was that Mr. Hatton responded positively to each such request. Mr. Kay also said that there was no attempt to qualify the discrepancy as this is what the preference shares were supposed to do.

[57]With respect to the land certificate, the witness said that the services of Mr. Gilead were used but he had no idea il he was the Registrar. He said that it was his understanding that the individual was an official at the Land Registry but had no idea as to the position he held. With that testimony, it was put to the witness that he knew that it was Mrs. Hill who could change any matter on the Land Register. Mr. English responded by saying: “you are wrong”. It was further put to Mr. English that he knew that there was a charge and he responded by saying that he knew of an illegal charge for $11,000.00 and had written to Mr. Gilead in this connection as one of the things that had to be done. • .. .

[58]Regarding the non-citizens licence, Mr. English testified that he was aware that English Haven had to obtain such a licence; but according to him we operated under the assumption that the licence given to ASD would also affect English Haven. And when it was put to him by leamed counsel that the licence was required, he agreed.

[59]Continuing his testimony, Mr. Philip English said this: “On 8th October, 1997, when I took the documents, home I felt I had all the documents I needed. English Haven is a subsidiary of ASD. I don’t know by virtue of what. I went home with a land certificate for Parcel 58 in the name of English Haven.” [60J It was put to Mr. English that he knew that English Haven had no land and he responded by saying: “I trusted everyone, Hill, Gilead and Richardson”,

[61]Mr. English was next questioned on the fees paid. He said that it was US$15,000.00 and it came from the Magnussons. He told them what he was going to obtain. His evidence continued thus: “Minister Yearwood came up with the name of the person who was to deal with the problems. He was a Senator. I had no idea if he had authority over anyone, I paid US$12,000.00 to Mr. Gilead, either Gilead or Richardson told me that. This was the cost of the work to be done. I paid the fee to Mr. Gilead late one evening. It was after dark. I got four or five receipts, I don’t think I got a receipt for the US$12,OOO.00. It did not cross my mind that there was no receipt. I trusted all the people Idealt with,”

[62]Against the foregoing, it was put to Mr. English that he and Mr. Gilead conspired to breach the non­ citizens legislation. He responded in this way: “Absolutely ridiculous. It was not me who was desperate to split up the companies. I was the one who was trying to facilitate the split so that the Magnussons could get Parcel 56,” • , .

[63]It was further put to the witness that he conspired to for the Registrar’s signature. His response: “Absolutely ridiculous – I certainly did not.” Mr. English later added that he was in control of English Haven from 1997 to 2007 whereupon it was put to him he functioned merely as amanager. This was doubted by the witness who testified that he had shares and questioned what he would have done with his shares if that were the case. According to him: “It is ridiculous. It is not true.”

[64]On being referred to page 536 of Bundle C (being a letter from Turner), it was put to Mr. English that he failed to account for the income. Mr. English in response said that the letter came after 32 obscene phone calls from the Magnussons and that the matter of the failure to account is incorrect.

[65]Returning to the matter of the land certificate, it was put to Mr. English the sum of $50,000.00 was the consideration. He agreed, However, when it was put to him that by inserting $50,000.00 he defrauded the revenue, he disagreed, It was further put to Mr, English that the correct sum was US$800,000,00, His terse response was: “If you say so,”

[66]In re·examination, Mr. English was questioned concerning a number of loans that were paid off namely Nichols and Llewelyn. He testified also that at this stage English haven had no property that could be changed and hence Parcel 58 was changed, He went on to say that the Magnussons knew what was going to on.

[67]Finally, Mr. English testified that he believed that Mr. Bjorn Magnusson put some of his own money into the project and that as of 1997 he said he wished to get out of the project and make as much money as he COUld, Frederick Aubrey Guy Kay

[68]In his affidavit filed on 11th December, 2008, Mr. Kay deposes that he is a retired company secretary and he has maintained as close interest in law and procedure relating to private companies limited by shares.

[69]In his said affidavit, Mr. Kay details his professional involvement with Philip English, Bjorn Magnusson, Inger Magnusson and ADS. Further Mr. Kay gives a detailed commentary on the agreement dated 18th February, 1991.

[70]In cross-examination by learned counsel, Mr. Wason, on the matter of his advice to Mr. Philip English, the witness testified that the advice was given as a friend and further that his area of professional competence is the Companies Act. With respect to the matter of the replacement land certificates, Mr. Kay testimony is that this should be done in view of the contacts Mr. English said he had in Antigua. And in reference to page 620 of Bundle B, Mr. English said that he had not seen Mr. English’s affidavit before and what he (Kay) deposes in his affidavit is an opinion based on what Mr. English revealed to him after he had met Mr. Guy Yearwood, whom he believed to be agovernment Minister.

[71]Regarding the draft transfer referred to at paragraph 24(a) of Mr. English’s affidavit, Mr. Kay testified thus: “I did not prepare the drafts. I cannot recall doing so. Ido not know why three drafts were prepared. The usual way is to prepare the draft and leave it undated. Ido not remember having anything to do with the three documents,”

[72]And in relation to paragraph 28(b) of Mr. English’s affidavit, in which he gives details as to how the draft document was altered, Mr. Kay said this: “I see he refers to the sum of $50,000.00 as consideration. It would be unusual to insert a consideration. Idon’t think my opinion is worth much as I think that there is the law. It depends on the circumstances. If there is atransfer from father to son it would be normal. It would be ok at times. In these circumstances it, would not be and Idon’t know the reason for inserting the figures.” 19 • … + [73J On being referred to paragraph 26 of Mr. English’s affidavit in which he details certain arrangement concerning the documents and instructions, given to one Mr. Gilead, Mr. Kay noted that what is revealed may not be everyday procedure. He went on to say that in England it would not be normal to collect documents from the home of an official late in the evening. And further that there is more liquidity in England and it is possible that there could be a special circumstance: He then testified further in this way: “The steps taken by Mr. English were legitimate. I never entertained any doubt that there was anything untoward in what was done. I am aware that Swiss American Bank had a charge on the property. I believe that the charges claimed by Swiss American. He asked his Secretary to obtain aclosing figure for the purposes of closing. He got afigure and it was sent to Antigua and Barbuda. I do not believe that the land certificate could be obtained without asettlement of the claim by Swiss American.” [74J With respect to the transfer from ASD to English Haven, Mr. Kay testified that he was not familiar with the land registration legislation in Antigua, but he was aware that English Haven would require a licence. He went on to say that he did not know that in 1989 Hill and Hill obtained permission from the Magnussons and English to hold land. He went on to testify that the transfer from ASD to English Haven should not have been done without alicence. [75J Regarding the agreement of 18th February, 1997, Mr. Kay acknowledged that it was concemed; Mr. Kay recalled writing it with the statement on page 203. He added however, that the hand­ writing was not his. And further that the memo was directed at Philip English because he wanted Parcel 58 and he (Kay) thought that it was of a reasonably equitable nature. [76J With respect to the agreement of 18th February, 1997, Mr. Kay explained that one requirement was that the assets of ASD should be tied to a subsidiary Clause 8. And with respect to the loans referred to in Clause 5, he said that it was his understanding that these loans should have been transferred to English Haven. He added that he was aware that the company owed Gordon Nichols $170,000.00 and he was not prepared to dispute this.

[77]On being referred to the draft charge appearing at page 336 of Bundle C, Mr. Kay said that he saw it previously. It was then put to him that it reflects an amalgamation of the loans owed. This was doubted by Mr. Kay since, according to him, Jill Llewelyn was paid off and the other loans were re~ assigned.

[78]Speaking to the completion date of the agreement of 18th February, 1997, Mr. Kay said that a completion date is quite normal which was needed in this case especially in light of the difficulties being drafted by him. He contends that the agreement recognizes that a licence was required by English Haven and that the land [parcel 581 would be transferred. [791 On being referred to page 620 of Bundle C, concerning the balance sheet, Mr. Kay said that he would have seen it as prepared by Timothy Jackson, as the accountant. He went on to deny that he had anything to do with its preparation in these terms: “I do not see how I could advise an accountant on accounting details. It is the other way around, I got the details from Mr. Jackson. had no records so that I cannot say I know anything about these types of figures.”

[80]With respect to the Schedules appearing at pages 227, 228 and 229 of Bundle B, Mr. Kay at one point said he could not recall them as they were not part of the agreement of 18th FebnJary, 1997. Another reason given in this regard was that he did not maintain the accounts of ASD. However, with respect to Schedule 1, Mr. Kay did testify that he may have prepared it. He went on to testify that the Schedules were designed to give Bjorn Magnusson and Philip English as choice with respect to the assets available. [811 Insofar as the memorandum appearing at page 201 of Bundle B, is concerned, Mr. Kay recalled writing it with the statement at page 203. He added however, that the handwriting was not his. And further that the memo was directed at Philip English because he wanted parcel 58 and he (Kay) thoughtlhat it was of areasonably equitable return. 21 ” ,

[82]With respect to the agreement of 18th February, 1997, Mr, Kay explained that one requirement was that the assets of ASO should be tied to a subsidiary clause 8. And with respect to the loans referred to in Clause 5, he said that it was his understanding that these loans should have been transferred to English Haven. He added that he was aware that the company owed Gordon Nichols $170,000.00 and he was not prepared to dispute this.

[83]On being referred to the draft charge appearing at page 336 of Bundle C, Mr. Kay said that he saw it previously. It was then put to him that it reflects an amalgamation of the loans owed, This was doubted by Mr. Kay since, according to him, Jill Llewellyn was paid off and the other loans were re-assigned.

[84]Speaking to the completion date of the agreement of 18th February, 1997, Mr. Kay said that a completion date is quite normal which was needed in this case especially in light of the difficulties being encountered with Bjorn Magnusson.

[85]With respect to the charge dated 30th July, 1997, appearing at page 336 of Bundle C, Mr. Kay testified that it was executed by Philip Pilgrim as an officer of ASO and is not inconsistent with the agreement of 18th February, 1997, He added that he saw nothing inconsistent with the charge being signed and held in escrow. And further, however, that since English Haven was in existence at the time the charge should have been in relation to English Haven rather than ASO, but also noted that at this time English Haven did not have any assets. However in terms of the liability under the charge of 30th July, 1997, he said that it will be liable until they finally transfer the charge to English Haven. He went on to say that he was not aware as to whether by 14th November, 1997, all of the liabilities were transferred. He also said that the redeemable preference shares were not done but he did not consider this to be amajor error.

[86]In re-examination Mr. Kay gave further clarification concerning the drafts and the paying off of the loans. • Olivia Adams

[87]In her affidavit sworn to on 21 st January, 2009 and filed on the same date, Ms. Adams details the nature and extent of her employment involving Lady Hamilton house (Parcel 56) and English Haven house (Parcel 58). She deposes that she was the housekeeper and day-to-day manager.

[88]In her said affidavit, Ms. Adams gives evidence as to her understanding of the ownership and control of Lady Hamilton house and English Haven house. According to her, the Magnussons controlled the former and Mr. English and his family the latter. And in terms of the latter, Ms. Adams contends that she never received instructions from the Magnussons regarding English Haven house. And in this regard it is her evidence that: “As far as I am concerned, their [the Magnusson’s] only involvement with the English Haven house was on the few occasions when they stayed in the property as guests for aweek or two for holidays. To the best of my recollection, their stays at the English Haven was hardly more than once per year.”

[89]Mr. Adams also deposes as to the occasion in 2007 when the Magnusson’s broke into the English Haven and the events that followed, including the occupation of the said property and the loss of her main source of income after more than 15 years.

[90]Ms. Adams was not cross-examined on her affidavit.

Cecile Hill

[91]In her affidavit filed on 13th November, 2008, Cecile Hill deposes that she is the Registrar of Lands in Antigua and Barbuda and also as to the other offices held or acted in by her. ,. , ,

[92]Mrs. Hill details the procedure that must be followed in the circumstances where the land register for any particular parcel of land is missing. Essentially, according to her, this involves searching the parcel file and the presentation book. [93) Also deposed to by Mrs. Hill are the facts and circumstances leading to: the creation of aduplicate register with respect to Parcel 56, the processing of a Mutation Form with respect to Parcel 58, the creation of a new Parcel 97 (from parcels 58 and 90) and the claim by the Claimant herein as owner of the said Parcel 97 (rather than ASD) by virtue of Instrument of Transfer #4073/96 dated 4th February, 1996.

[94]The events subsequent are detailed by Mrs. Hill as follows: “20. I immediately caused second search to be made of the Parcel File and the Presentation Book on which should have been noted Entry #4073/96 verifying the registration of an Instrument of Transfer from the Second Defendant to the Claimant had been torn off and was missing. To date despite extensive searches I have been unable to locate the Instrument of Transfer in the Land Registry. 21. I noted the Claimants’ Attorney orally of my findings and asked him whether this was a matter which could be settled amicably and if not I advised him that he would have to apply for a Case Stated to enable me to refer the matter to aJudge of the High Court for a decision.”

[95]It is Mrs. Hill’s further evidence, that on the 5th February, 2007, the Claimant’s attorney made an application on behalf of his client for the registration of acaution which caution was duly registered (RL 200700020) pending the outcome of these proceedings. Mrs. Hill testified as to the detailed workings of the Land Registry with respect to all transactions in land in Antigua and Barbuda. [96} In cross-examination by Mr. David Cocks, Q.C., Mrs. Hill said that in relation to Parcel 56 she received the Register, it contained entries up to number 3 and that the transaction involving Mr. Frost came later. And in this context she explained that when land is changed the instrument goes to the Land Registry. Mrs. Hill also said that she had no idea as to how Instrument #4069/96 24 , , was obtained. It is also her contention that the said instrument is irregular. Further with respect to Parcel 97, Mrs. Hill testified that anew land certificate was issued on 15th March, 2005, to ASD following an application filed by Hill and Hill who represented the Magnusson’s. Continuing her evidence she said this: “I did not know that the land was split up. I had no information on any agreement. I got an application for ASD. I discharged the charge and issued a land certificate. All I had was my reconstituted register. I got a discharge of charge and registered it. I accepted that ASD were the owners.”

[97]In re-examination. Mrs. Hill said that attention was drawn to letters from Mr. Philip English by Mr. Hollis Francis. attorney-at-law. And she repeated her earlier testimony that none of the instruments in issue were recorded in the Land Registry file or in the Presentation Book.

Inger Magnusson

[98]Inger Magnusson swore two affidavits in these proceedings. One on 19th June, 2007. and the other on 23rd November. 2007. [99J In the affidavit of 19th June, 2007, the deponent raises doubt regarding the registration of the Claimant as the registered proprietor of Parcel 97 on the ground that at the time of the registration, the Claimant company did not exist.

[100]Doubt is also placed on the agreement of 18th February. 1997, and its extension dated 14th November, 1997, for the following reasons detailed at paragraph 5: (a) The agreement of 18th February, 1997, was not completed by 31 st March. 1997, as required by Clause 4 or by 15th November, 1997, as required by the extension agreement dated 14th November, 1997. (b) It is inconsistent with a legal charge dated 30th July, 1997, which was granted by the defendant company to Gordon Nichols to secure repayment of the sum of US$170,OOO.00. This charge although unregistered was executed by Philip T. English in his capacity as director of the defendant company. Mr. English could not have believed that he was no longer adirector of the defendant company or that parcel 58 (97) was at that time owned 25 •. by English Haven Ltd. when he executed that document or he would have been committing fraud on Mr. Gordon Nichols. (c) Finally, as more than six years have expired since the extension for completion on the 15th November, 1997, legal action cannot be instituted to enforce any uncompleted obligations.

[101]Further, the deponent contends that with respect to the unregistered charge, the money borrowed by Mr. English from Mr. Nichols using the house on Parcel 58 (97) as security without the knowledge and consent of herself or her husband.

[102]It is the further contention of the deponent that the only aspect of the agreement cornpleted was the transfer of his [English’s] share in the defendant company to her by way of a share transfer document dated 14th November, 1997.

[103]With respect to the matter of the sale of Parcel 97, the deponent does not take issue as this is essentially correct. However, the deponent’s further position is stated thus: “Although we ultimately wish to sell the said villa, as is our right as registered proprietors, we wish to do so only after this challenge to our title is completely disposed of. On the 5th January, 2005, we paid off all the monies due to Swiss American Bank, now called Global Bank of Commerce and obtained the land certificate for parcel 97. The Discharge of charge is herewith exhibited….Our title is clearly valid as the monies owed to the bank had been secured by means of our changes shown as entries 2 to 6 relating to Parcel 97.”

[104]Finally, the deponent contends that the directors of the company which owns the villa, have a right to stay there free of charge, whenever it is not occupied. Further that in February 2007, adecision was taken to occupy, take permanent possession of the villa as Mr. English had not accounted for the rental income. And the matter of defrauding Mr. English of his legal rights is denied.

[105]In her second affidavit filed on 23rd November, 2007, the issue of Philip T. English’s travel to Antigua for the express purpose of obtaining replacement certificates for Parcel 58 on 10th October, 1999, is addressed. In this regard, it is deposed that such an event could not happen as there was , , a charge on that parcel in favour of Swiss American Bank which was not discharged until 5 th January, 2005. Likewise, the matter of being advised that replacement certificates for Parcel 56 were to be sought is also denied. Such advice relates only to Parcel 56.

[106]At paragraphs 4 to 7 of her said affidavit Inger Magnusson addresses the matter of the replacement certificates with respect to Parcel 58 and the issues arising such as the foregoing of the Registrar’s signature, estoppels, as pleaded, and the powers of the Court in the circumstances.

[107]In cross-examination by learned counsel Mr. Cocks, QC, Mrs. Magnusson said that the object of the agreement was to split up the property, as “it was the best we could do”. She also said that ASD had problems and Mr. English did not manage the company very well. And added to that Antigua had bad hurricane which resulted in the villa on Parcel 56 having a broken roof.

[108]With respect to the agreement, Mrs. Magnusson testified that there was a series of arrangements which led to it. According to her: “We were to have 56 with 58 going to English Haven. That was the basic issue plus the question of the preferred shares which was all set out in the agreement”. The deponent went on to testify that on 23rd July, 1997, she was in the presence of Mr. Philip English and heard him say that the split had taken place and the signed document were held. According to her: “I think he was referring to the things we spoke about.

[109]Continuing her evidence on cross-examination Mrs. Magnusson said this: “The bar to the agreement was the issues of the two certificates and that Mr. English and I went to Antigua and Barbuda to do something. We did not go together. I went to Antigua to clean up and to do things for lot 56. The land certificate was not my purpose. I went to clean up so that we can start doing some repairs.

[110]On being referred to a letter to Dane Hamilton, at page 335 of Bundle C, the witness agreed with certain aspects of it; but insisted that she did not go to Antigua together with Mr. English and as , . such the dates are wrong. In this regard, it is Mrs. Magnusson’s testimony that while in Antigua she saw neither Mr. English nor Mr. Hamilton.

[111]In relation to a letter to Mr. Gilead appearing at page 334 of Bundle C, Mr. Magnusson gave this testimony: “This is not true. Philip only said he was going to speed up. We were not informed of this. Mr. English was trying to speed up the process through his contacts. I have no idea of a land certificate for Parcel 58. We never talked about two land certificates. When Mr. English came back he had acertificate for Parcel 56. I don’t know about one for Parcel 58.

[112]With regard to the meeting referred to at page 364 of Bundle C, the witness said that she was present and that at that time her daughter was appointed a director, she was appointed secretary, Mr. Timothy English resigned. She added that her husband was also present as well as Mr. Kay. She went on to say that our signatures are at page 365.

[113]As far as the extension of the agreement is concerned, Mrs. Magnusson gave the following testimony: “We agreed on an extension. As far as I can remember, we signed early on 14th November, 1997. I may be wrong. I signed my commitment to the agreement. I signed both. I cannot say no to that. I took possession of and let and sold it. I took a long time. Mr. English took possession of 58 and looked after it. administered it and let it as I split up the proceeds of ASD ­ one villa each”.

[114]With respect to the conversation mentioned at paragraph 13 of Olivia Adam’s affidavit, Mrs. Magnusson said that she could not remember any such conversation but I may have told her that. Continuing her evidence Mrs. Magnusson said that they came to the conclusion about the ownership of Parcel 58 when Swiss American Bank was paid off in 2005.

[115]In concluding her cross-examination by Mr. Cocks, ac, Mrs. Inger Magnusson gave the following testimony: 28 , , “I went to Swiss American Bank and paid off US$11,968.00. I went away with the land certificate. At that time we realized that the liabilities were not taken over. We had to pay things Philip should have paid. We also had to take over all the liabilities that were not taken over by English Haven. My husband put in most of the bank’s money. Up to 5th January, 2005 I did not know that parcel 58 belonged to English Haven. I knew that Swiss American Bank held the land certificate. Under the agreement we got 56 and Philip English got 58. Very late we realized that the agreement was not followed. We went to the bank and paid and went away with the land certificate. The articles of forbid ASD to own any other property. We tried to converse with Mr. English but he did not want to talk to us. What we did was the honest thing to do. I paid off the bank in 2005 and I went to the house in 2007. We did not do anything special. For two years we did nothing about ownership. We did not write to Philip English by way of aSolicitor’s letter. Idid not think it was necessary. Mr. English was still in possession and running 58. In January, 2007 I went into the property. I did not tell this to Mr. English. We tried to talk to Mr. English. We are sick and tired.”

[116]Finally, it was put to the witness that what she did was underhand. She responded on the negative and added that she occupied the property as she thought she was the owner from January, 2005.

[117]In cross-examination by Mr. Justin Simon, QC, Mrs. Magnusson said that she accepted that Parcel 58 should have been transferred to English Haven in accordance with the decisions taken and the agreement signed. She went on to say that the agreement never changed and there was never any discussion between her and her husband to change the same. The witness also testified that Mr. English was advised by telephone and e-mail that all was not well. And further, that Mr. English and Mr. Kay started to sort out the problem with Swiss American Bank’s demand. Further still, that the said bank had threatened to sell 58 and that were interested because of the preferred shares they were supposed to prefer to have.

[118]It is also Mrs. Magnusson’s evidence that she was aware of Mr. English’s challenged to our contention and that he went to see Mr. Dane Hamilton in, this connection.

29 t

[119]Mrs. Magnusson ended her cross-examination by saying that: “I still maintain that 58 belong to ASD. Mr. English’s shares could be dealt with at a later stage. Mr. English did not want to talk about this. The property can be sold and Mr. Nichols paid. Under the agreement he was supposed to be ashareholder of English Haven. [1201 There was no re-examination of Mrs. Magnusson.

ISSUES

[121]The following are the issues for determination: 1. Whether the Claimant is entitled to adeclaration that the Claimant holds good title to Parcel 97 (formerly Parcel 58). 2. Whether the Second Defendant holds Parcels 97 in trust for the Claimant on circumstances in which title should forthwith be transferred to the Claimant; and if so whether the Claimant is entitled to damages for loss of use and revenue from the villa. 3. Whether the First Defendant erred in registering the Second Defendant as the proprietor of Parcel 97. 4. Whether the provision of the agreement of 18th February, 1997, that the shares of the Second Defendant should transfer to the Claimant is still valid and enforceable. 5. Whether or not the Land Register should be rectified by registering the Claimant as the proprietor of Parcel 97 together with the villa known as English Haven. 6. Whether or not the Claimant is entitled to be indemnified by the first and third-named defendants. Issue No.1 Whether the Claimant is entitled to or declaration that the Claimant holds good title to Parcel 97 (formerly Parcel 58); or in the alternative whether the Second Defendant holds Parcel 97 on a trust for the Claimant in the circumstances in which title should be transferred to the Claimant. Background [122) The facts involved in this regard are not in dispute and are as follows a locally incorporated company, Anglo Swedish Developments Limited (ASD) purchased two parcels of land from Galleon Beach. The parcels were development by way of the building of two, villas. Lady Hamilton on Parcel 56 and English Haven on Parcel 58. The initial shareholders of the new company were Philip T. English and Bjorn Magnusson. [123) At a later stage, there were discussion and meetings involving the interested parties concerning the 18th future of ASD. The result was that on February, 1997, an agreement was arrived at the essence of which being that ASD would be re-organised and as such Parcel 56 would be retained by ASD (the Second Defendant herein) and Parcel 58 would be transferred to a company to be incorporated for the purpose following which the shareholding in ASD (the second defendant) would be held by Bjorn and Inger Magnusson that which of the new company would be held by Philip English and Gordon Nichols. The new company incorporated was English Haven. [124) The immediately relevant provisions of the agreement are in these terms; “A. ASD shall arrange for B&IM and PTE to be appointee the nominees of ASD to hold on behald of ASD the entire issued share capital of its subsidiary English Haven Limited in the proportions of 67 shares and 33 shares respectively. B. Application shall be made for a Land Licence to be issued in the name of English Haven Limited in respect of No. 58. C. On the issue of the Land Licence ASD will transfer to English Haven Limited for a nominal consideration of US$1 (one U.S. dollar) the registered title to No. 58 subject to the mortgage to Swiss American Bank if not previously discharged. D. English Haven Limited will at the same time take over the liabilities referred to in (5), (6) and (7) above. E. Completion shall take place at adate, time and place and in amanner agreed between 8&IM and PTE. F. At completion 8&IM will pass to PTE aduly executed stock transfer form and share certificate (or in the event of loss a Letter of Indemnity for Lost Share Certificate) for 67 shares in English Haven Limited and in exchange PTE will pass to B&IM aduly executed stock transfer form and share certificate (or in the event of loss a Letter of Indemnity for Lost Share Certificate) for 3300 shares in ASD registered in the name of PTE together with written confirmation on ASD letterhead. · that the beneficial ownership of 67 and 33 shares in the new subsidiary company English Haven Limited are passed to B&IM and PTE respectively on adistribution of assets. · such confirmation as may be reasonably required by B&IM as to the issue of the duplicate land certificate for No. 56 and · confirmation of the freedom of ASD from the liabilities referred to in (5), (6) and (7) above. G. Immediately following the exchange referred to in F. above PTE will · table &pass to B&IM letters of resignation from office signed by all the directors and the secretary of ASD · arrange and document the appointment of B&IM or their nominee or nominees as director and secretary of ASD · issue to B&IM ashare certificate for their Redeemable Preferred shares in the new subsidiary company. H. This agreement shall cease to have effect if completion does not take place before or on 31 st March, 1997, except in the event of an extension of time for completion having been agreed by all parties.”

[125]The matter of the transfer contemplated by the agreement and other dealings were frustrated and complication by the land certificate for both parcels were in the possession of Svenrick Eklund and Swiss American Bank Limited and could not be recovered for various reasons or disputes.

[126]This situation caused Mr. Philip English, based on certain contacts and recommendations, to enter and arrangement whereby an employee at the Land Registry (Ernest Gilead), other than the Registrar of Lands, agreed to supply replacement land certificates and to effect other procedures on dealings relating to the said parcels. The consideration involved was US$12,OOO.OO.

[127]The matters effected by Mr. Gilead are summarized in the First Defendant’s closing submissions and which the Court adopts. They are as follows: U(a) Inserted the slim of EC$50,OOO.00 in words and figures on the blank Transfer Instrument provided him; [Bundle ‘C’, p 358] (b) Changed the date of the Transfer Instrument from “October 1997” to read “September 2, 1996″; [Bundle ‘C’, pgs 356 &358] (c) Placed the land Registry stamp bearing date September 2, 1996 on the Instrument; [Bundle ‘C’, p358] (d) Assigned Registration ‘No. 4073/1996″ to the Transfer Instrument; [Bundle ‘C’, p 358] (e) Struck off the caution and charges in favour of Swiss American Bank without any due authorization; [Bundle ‘C’, p603] (0 Entered on the Land Register “English Haven Limited” as the new registered proprietor in place of “Anglo Swedish Development Limited” which he crossed out; [Bundle ‘C’, p 602 (g) Issued a Land Certificate in the name of “English Haven Limited” in respect of parcel 58; [Bundle ‘C’, p 362] (h) Places the initials and signatures of “Sharon Gibson” on the various alterations purporting that the alterations were confirmed by the Assistant Registrar who had demitted her position in 1996 [Bundle ‘C’, p 602J; and (i) Dated all the transactions, entries and alterations “September 2, 1996” when his actions were in fact executed in October 1997 [Bundle ‘C’ pgs 602&603.” The declaration as to good title [128J In the face of the evidence, learned counsel for the Claimant in his closing submissions has conceded that: [The ClaimantJ cannot rely on the land certificate for 58 since there were irregularities at the Antigua Land Registry surrounding its production. Likewise, the Magnusson’s could and give good title to Frost when they sold 56 to him, using the irregularly obtained certificate for 56″.

[129]Accordingly, the declaration prayed for as to good title to Parcel 58 (now 97) is denied. Issue No.2 Whether the Second Defendant holds Parcel 97 in trust for the Claimant in circumstances in which the title should forthwith be transferred to the Claimant; and if so whether the Claimant is entitled to damages Submissions

[130]The following constitute the essence of the submissions8 on behalf of the Claimant on the issue: “4. At the core of the Claimant’s care is the undisputed fact that there was an unequivocal and unambiguous agreement and acommon intention on the part of the parties that BM&IM should have Villa 56 through ASD Ltd. And that PTE should have Villa 58 through EH Ltd. When 1M came to give evidence she did not contest the fact of that agreement. It could hardly have been otherwise, given that all the contemporaneous records evidenced such an agreement. 5. The key documents are the Primary Agreement at [C307-310] and the Extension Agreement at [C365}. However, there are a number of other documents generated in the immediate run up to the written agreement and in its aftermath, which confirm and reinforce the common intention of the parties. Since, as a matter of jurisprudential theory, the Court is being asked not to enforce the agreement, which is unenforceable, but rather “to give effect to an equity which has arisen extra the contract and as such a result of what the parties have done” (see Ash Properties VPollnow at Bundle DTab 9 p. 1001A), it is obviously right for the Court to have regard to what those documents reveal as to what the parties intended by the written agreement into which they entered. In the Claimant’s oral opening speech, reference to the contents of those documents was relatively sparse. Given that the essential agreement for the division of the assets lies at the heart of the Claimant’s case, it may assist to list in chronological order the page references for the communications evidencing the essential agreement. 6. It is apparent that, prior to agreement being reached on the essential mechanisms to be adopted, anumber of different permutations and alternative solutions were canvassed. Ultimately, however, the parties agreed that the Magnusson’s should have Villa 56 through ASD Ltd. And PTE should have Villa 58 through a new company formed for that purpose, EH Ltd. The communications which led directly to the formal written agreement dated 18th February, 1997 start with the ‘Memorandum To The Directors Of ASD circulated on 06.12.96″9 8 Claimant’s Closing Submissions (29 th October 2009) filed on 29 th October 2009. 9 The documents with their references identified are as follows: B236 Memorandum to the Directors re the formula in principle; B243 Covering letter to BM; B246 Telefax from BM & 1M to PTE, agreeing in principle; B253 PTE to BM enclosing draft agreement for signature; B265 last page of draft agreement signed by BM & 1M as accepted in principle; B297 Incorporation of EH Ltd.; B301-305 PTE to BM & 1M, enclosing two copies of final agreement, one copy to be signed by them and returned; B307-310 Final agreement signed by all the parties; C311-312 AK/s explanation of the agreement, as recorded by lH (C311 final paragraph & C312 first two paragraphs); C315 ASD Ltd minutes (under heading ‘re-organisation’); C317 EH ltd minutes (under heading ‘re­ organisation’); C319 ASD Ltd resolution re transfer of Villa 58 to EH Ltd.; C364 The Meeting attended by BM and 1M at Churchlands on 14.11.97, wrongly omitting reference to the attendance of AK and BM; C365 The Extension Agreement; C409-410 The Articles of Continuance for ASD ltd (see para 6), signed by 1M; 7. It cannot be disputed and indeed was not disputed that, following the meeting at Churchlands on 14th November, 1997, and the signing by the parties at that meeting of the Extension Agreement, Villa 58 was for all purposes treated as belonging to EH Ltd and the parties acted accordingly. It was only years later that BM & 1M hatched their dishonest scheme to take possession of Villa 58 and seek to justify actions by reference to the old Land Certificate obtained by them for that purpose from the Swiss American Bank by paying off the disputed ‘collection fee’, Prior to that, indeed prior to BN &1M going into unlawful occupation in early 2007, there was no suggestion from them, whether written or oral, that they regarded themselves as having any interest in Villa 58 (beyond the right to short stays free of charge, which they were always granted on request). On this issue, the undisputed affidavit evidence of Timothy Jackson [Bundle ATab. 22 paras. 2 &3J and Olivia Adams [Bundle AA Tab. 26 paras. 6 & 8-13J is of particular Significance. When 1M came to give her evidence she expressly accepted that the parties has so understood the position and had acted accordingly.” [131J On behalf of the Second Defendant the following subrnissions were tendered: “C. Should the Court find that Mr. English’s actions were fraudulent and unlawful the major issue is whether he should be permitted to succeed with his claim based on proprietary estoppels and constructive trust. The Defendant concedes that had Mr. English chosen to litigate to enforce his perceived rights under the primary agreement, the Court may well have good cause to find on the evidence before it, that the Claimant is entitled to be the registered proprietor of English Haven. In light of the evidence before it however it is submitted that the case of Gonthier and another v. Orange Contract Scaffolding Ltd. (exhibit 5 of the Defendants “legal submissions and authorities on behalf of the Defendant” filed herein on the 29th May 2009). Although this case is a decision of the English Court of Appeal and is thus only persuasive authority, it deals specifically with the application of the equitable “clean hands” maxim and the issue of the ability of a Claimant to seek equitable relief who has fabricated documents. D. In conclusion we would urge this Court to adopt the view of Parker L.J in Willis J &Son v. Willis 1EGLR 62 at page 631 which was quoted by Kay L.J and Lindsay J at paragraph 34 of the Gonthier Case:­ “I find it difficult to see how there could be any more serious conduct than that. When a party comes to Court and seeks to obtain from it equitable relief, it is accepted, as I have said that he must come with clean hands. I accept also, as was submitted on behalf of the appellants that not every item of misconduct can possibly be sufficient to deprive a party who seeks equity from being granted the relief he seeks. Some misconduct may be trivial. But when a party acts as these C403-404The Articles of Continuance for EH Ltd (see para 6) parties have done….it seems to be impossible for this Court to do other than to take the most serious view of it and to decline to grant equitable relief… .” The Evidence

[132]The evidence is set out fully above so that at this juncture, the Court considers it appropriate merely highlight or emphasize those aspects of the evidence that relate to equitable doctrines relied on by the Claimant.

[133]In his affidavit,10 Philip English detai/ed the circumstances giving rise to the issue of the split-up of ASD divisions of the assets and the ultimate agreement. This in turn led to the incorporation of the company, English Haven by Mr. English “in view of their agreement.”

[134]At paragraph 32 of his affidavit, the following is deposed by Philip English: “The management and control of 58 has been exercised by English Haven ever since November 1997, until the Magnussons broke into the property and occupied it in February, 2007, namely for a period of nine years. English haven has seen to the calling and maintenance of the property and paid for the outgoings. I have conducted the affairs of the company at my own affairs on the basis that the company was the registered owner of 58 and nobody until this year suggested to the contrary. However in the light of what has now transpired we know that the Magnussons in 2005 surreptitiously persuaded the Registrar of Lands, Cecile Hill to issue anew land certificate to Anglo Swedish Developments knowing perfectly well that they had no right to do so and that English haven Limited was the rightful owner and then relying on the certificate they had obtained, broke into and occupied the villa.”

[135]It is to be noted that although Mr. English was extensively cross-examined by Mr. Justice Simon, QC and Mr. Dexter Wason, this aspect of his evidence-in-chief remained untouched.

[136]Olivia Adams, too, was not cross-examined on her affidavit. However, as the housekeeper and day-to-day manager, she gave a substantial amount of evidence regarding the operation of the lO Affidavit filed gth October 2007 para 16. 36 two villas.

[137]In brief she gave evidence (at the paragraphs of her affidavit indicate) that: 5. In or about late 1997, it became somewhat obvious that there was some changes in the requirements and instructions to me in respect of the management of the Lady Hamilton house which led me to believe that the Magnussons has some direct control and ownership over Lady Hamilton House. 6. It was clear that the English Haven house belonged to Mr. English and his family and my management responsibilities remained constant in respect to that house. 7. Inger Magnusson informed her that they [the Magnussons] had sold Lady Hamilton House and the thereafter she had no involvement with that property. 10. She could not recall ever receiving instructions about The English Haven house from Bjorn or Inger Magnusson. 12. At no time during their stays at The English Haven house did either Bjorn or Inger Magnusson ever say or do anything which gave me the impression that they considered themselves owners of the property or having any interest going beyond being guests enjoying ashort stay there. 13. [DJuring one such stay, sometime after the Magnussons had sold Lady Hamilton house, I recall aconversation with Inger Magnusson, in which she said that all she had left in Antigua was afew more holidays at the English Haven house. [138J Inger Magnusson in her affidavits concentrated to a large extent on the circumstances surrounding the duplicate certificates and the incumbrances affecting Parcel 58. Mention is made of the agreement but the contention is that except for the transfer of 3300 shares held by English in ASD to her, the said agreement is null and void for a number of reasons. Beyond the agreement, Inger Magnusson deposed that Mr. English managed the villa on their behalf for several years but as directors of the company they had a right to stay there free of charge except when it is not occupied.

[139]In cross-examination by learned Senior Counsel, Inger Magnusson painted a new picture as far as the agreement is concerned by saying that: “The object of the management was to split-up the property. It was the best we can do. ASD had problems. My husband was diminished. He had to .. be. Mr. English did not manage ASD very well.” What followed is a series of contradicting evidence especially with regard to the assets of ASD.

[140]The language of the law regarding constructive trusts and proprietary estoppels is common.

[141]In Rosset v. Rosset Lord Bridge said that: The funding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussion between the partners, however, imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made it will only be necessary asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to aconstructive trust or proprietary estoppels.”

[142]In Yaxley v Golts 12 Robert Walker LJ re-stated the principles relating to constructive trust by saying this: “To recapitulate briefly: the species of constructive trust based on common intention is established by what Lord Bridge in Lloyds Bank v. Rosset [1991] 1AC 107, 132 called an agreement, or understanding actually reached between the parties and lied on and acted on by the Claimant. Aconstructive trust of not indistinguishable from proprietary estoppels. Equity enforces it because it would be unconscionable for the other party to disregard the Claimant’s rights.”

[143]On the other hand, in Yeoman’s Row Management Ltd. v Cobbe,13 Lord Walker characterized equitable estoppels in these terms: “Equitable estoppels are aflexible doctrine which the Court can use, in appropriate circumstances, to prevent injustice caused by the vagaries and inconstancy of human nature. But it is not ajoker or wild card to be used whenever the Court disapproves of the conduct of a litigant who seems to have the law on his side. Flexible 11 [1991!lAC 107, 132-133 12 [2000]lCl162, 180 13 [2008]UKHl 55 38 • though it is, the doctrine must be formulated in adisciplined way. Certainly it is important in property transactions.” [1441 Grey &Grey, Elements of Land Law, record the following learning: “10.173 The law of proprietary estoppels operates where the owner of an estate or land has expressly or impliedly given some informal assurance respecting present or future rights in that land. The doctrine of estoppels restrains that person from any unconscientiously withdrawal of his representation if the person to whom it was made has meanwhile relied upon it to her own disadvantage. The primary inquiry for the court is whether it is conscionable for the present to deny that which he has allowed or encouraged the representee to assume to her detriment. In this way estoppels doctrine finds its ultimate purpose in ‘enabling the courts to do justice.” [1451 The learned authors also make the point that: “An estoppels claim succeeds only if it is inequitable to allow the representor to overturn the assumptions reasonably created by his earlier informal dealings in relation to his land.”14 [1461 By way of summary15 the elements of the two doctrines are said to be as follows. For constructive trust: (a) bargain or common intention; (b) change of position or detrimental reliance and (c) equitable fraud. And for proprietary estoppels: (a) a representation or an ‘assurance of rights’, (b) reliance or change of position and unconscionable disadvantage or ‘detriment’. Analysis in relation to constructive trust. Bargain or common intention. [1471 The Court finds it hardly necessary to dwell on this element of the doctrine as the evidence reveals an abundance of instances in which the question of the parties splitting up or sharing the assets of ASD was discussed either viva voce or in writing. These instances are documented in the submission on behalf of the Claimant and which the Court accepts as fact. In this regard it will be 14 Grey & Grey, op cit, p. 950 15 Ibid at pages 915 and 949-950 • recalled that Inger Magnusson under cross-examination by Mr. David Cocks, QC made it plain that the object of the agreement was to split up the property as it was the best that could be done. With that said, the contentions about the validity or otherwise of the agreement cannot hold sway by virtue of a rule which says that: “The creation of such an interest does not depend upon contractual obligation but on a common intention acted upon by the parties to their detriment”.

Change of position or detrimental reliance

[148]There can also be no question that the Second Defendant changed its position as evidence by the actions of both Bjorn Magnusson and Inger Magnusson. The ultimate action in this regard came in January 2005 when the villa, English Haven was occupied by them on the ground that they were the owners. In this regard too, the Court notes and accepts as a fact that the Magnussons were part and parcel of the attempts to obtain legal documentation in relation to Parcels 56 and 58/97 as an integral part of the intent or understanding that ASD would retain 56 and 58 would be transferred to English Haven Limited.

[149]As far as detrimental reliance is concerned, this element even stronger as Philip English managed the villa, English Haven in all respects from sometime in 1997 until the Magnussons moved in February 2007. This evidence is strongly corroborated by Olivia Adams, who significantly, was not crossed-examined on her affidavit. It will be recalled that Ms. Adam’s connection lies in the fact that at one time she served as housekeeper/day-to-day manager of both villas until Lady Hamilton was sold in 2004. She however continued with English Haven. Equitable fraud [1501 It is said16 that: ‘Equitable fraud’ is present as soon as the absolute character of the conveyance is set up for the purpose of defeating the beneficial interest guaranteed by the bargain. And further that: “The essence of equitable fraud lies in the unconscientiously use of the legal title.”17 16 Grey & Grey, op cit, p. 915 17 Ibid at p. 916 [151) Therefore, as afar as this element is concerned there are several actions which would suffice. The first the paying off by the Magnussons of the debt owed to Swiss American Bank and later obtaining the land certificate for Parcel 97. Secondly, occupation of the English Haven (built on Parcel 97) and the assertion of ownership when the evidence, according to Olivia Adams is that Inger Magnusson told her that after the sale of Lady Hamilton in 2004, she had nothing left in Antigua except for a few holidays. This Inger Magnusson admitted she may have said. Thirdly, the transfer by Philip English of his 3300 shares in ASD to Inger Magnusson as part of the splitting up arrangement. But the element of equitable fraud may also be approached by asking arhetorical question: Why would the Magnussons in light of the common ground of a common intention, the management of English Haven by English from 1997 onwards, and the securing of duplicate certificates in which they were deeply involved, seek to assert title to the said parcel in 2005, even if the certificates were null and void? [152) It is therefore the view of the Court that the purpose of all the foregoing was the defeat the Claimant’s entitlement under the understanding after the Second Defendant had had their side of the bargain. The matter of clean hands [153) It will be recalled the learned counsel for Second Defendant, Mr. Dexter Wason has raised the equitable maxim which holds that he who comes to equity must come with clean hands. This, of course, rests on the fraudulent dealings with Ernest Gilead, then a clerk at the land Registry,to obtain replacement land certificates and other documents on behalf of Mr. Philip English. [154) Learned counsel places reliance on a dictum of Parker LJ in Willis J & Sons v Willis18 concerning equitable relief and clear hands. But the maxim has its context and there is authority for the proposition that it does not apply where the person who seeks the equitable relief can succeed 18 GLR 62, 63 without reliance on the illegality.19 This is in fact the submission by Mr. Cocks, QC who ends thus: “Therefore, entirely without prejudice to the Claimant’s role in relation to the Antigua land Registry in 1997, he is able to establish title to villa 58 without reliance on the replacement land certificate and the maxim that he who comes to equity must come with clean hands”.

Damages

[155]The evidence is that Mr. Philip English was in occupation and managed English Haven from November 1997 until February 2007 when the Magnussons moved in to occupy the same. Therefore, having regard to the Court’s ruling on the trust, it means that in February 2007 the English Haven, through its shareholders/directors had a right to occupy the property. That is one of the main consequences of the common intention as found by the Court

[156]Accordingly, it is the ruling of the Court that the Claimant is entitled to damages for loss of use and revenue from the villa until such time as there is compliance with the orders herein. The quantum is to be assessed after direction by aJudge of this Court.

Conclusion

[157]It is therefore the conclusion of the Court that the Second Defendant holds Parcel 97 (formerly Parcel 58) on trust for the Claimant and must give effect to the following directions: (i) within seven days of the presentation to the First Defendant of a validly drawn and attested draft transfer document prepared for the purpose of transferring title to Parcel 97 from Anglo Swedish Developments Limited to English Haven Limited, the First Defendant shall sign such document in place of the Second Defendant. (ii) deliver up Parcel 97 to the duly authorized representative of the Claimant forthwith upon the signing of the First Defendant of the said transfer documents.

[158]The Claimant is also entitled to damages to be assessed. 19 Tinsley v Milligan [1994jlAC 340, 376 per lord Browne – Wilkinson. See also: Gontier et al v Orange Contract Scaffolding ltd. [20031 EWCA Civ. 873 in which the maxim was applied. 42 Issue No.3 Whether the First Defendant erred in registering the Second Defendant as the proprietor of Parcel 97.

[159]As noted before, the Claimant has abandoned the claim to Parcel 97 on the basis of the law relating to registered title in Antigua and Barbuda. The Second Defendant in its pre~trial memorandum makes the following admission: “The Claimant obtained instrument No. 4073/1996 from Ernest Gilead then a clerk employed at the Land Registry, which purported to be a ‘land certificate’ conferring legal title to Parcel 58 to the Claimant company”. This, in effect, leaves the evidence of the First Defendant to govern the issue.

[160]In her affidavit Mrs. Cecile Hill, the Registrar of Lands, deposed as to the circumstances in which it came her knowledge that the Land Register was missing; that there was a pending Mutation Form No. 390/91 and of the searches carried out in the parcel file for Parcel 58 and also in the Presentation Book. All to no avail. In the circumstances the Mutation Form was processed and a new parcel number, being 97, was assigned to replace 58.

[161]It is Mrs. Hill’s evidence that further necessary searches were carried out after receipt of a letter from the Claimant’s attorney-at-law with respect to Parcel 58/97 being owned by his client. According to her: liTo date despite extensive searches I have been unable to locate that Instrument of Transfer in the Land Registry”.

[162]Mrs. Hill was crossed~examined extensively on the process and procedure leading up to the issue of a new land certificate for Parcel 97. And from the cross-examination the following emerged: 1. She had no idea as to how instrument 4069/1996 (being the instrument by which the transfer to English Haven was purported to be made) was obtained. 2. Instrument No. 4069/1996 was characterized as being aforgery and irregular. 3. The Mutation Form No. 39011991 though filed in 1991 was only processed in 2005. 43 \ 4. After the futile searches at the Land Registry for Land Register relating to Parcel 58 the assumption was made that it was lost rather than destroyed.

Conclusion

[163]It is the conclusion that there is nothing in the evidence which casts doubt on the action of the Registrar in issuing the land certificate to the Second Defendant having regard to all the circumstances. Accordingly, the Registrar of Lands did not err in registering the Second Defendant as the proprietor of Parcel 97. Issue No.5 Whether or not the Land Register should be rectified by registering the Claimant as the proprietor of Parcel 97 together with the villa known as English Haven.

[164]Rectification of the Land Register by the Court is regulated by section 140 of the Registered Land Act. 20 In particular section 140 provides thus: “140. (1) Subject to the provisions of subsection (2) the Court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration including afirst registration has been obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified so as to effect the title of a proprietor who is in possession or is in receipt of the rents or profits and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default”.

[165]Reduced to essentials, the provision is activated if there is registration obtained by fraud or mistake.

[166]In its statement of claim the matter of fraud is pleaded in these terms at paragraph 13: 20 Cap. 374 (Revised Laws of Antigua and Barbuda). • “On or about 15th March, 2005 Bjorn Magnusson or Inger Magnusson fraudulently procured from the First Defendant the issue of afurther land certificate for Parcel 58 (by this time transmitted to parcel 9). The said further land certificate was, as Bjorn Magnusson and Inger Magnusson well knew, inaccurate and invalid on that it purported to show the Second Defendant to be proprietor of parcel 58 and was inconsistent with the prior entry in the register showing the Claimant to be the proprietor. In order to procure the issue of the said inaccurate and invalid certificate, and in adishonest attempt to circumvent and defeat the terms and effect of the agreement. .. Bjorn and Inger Magnusson had presented the First Defendant the old land certificate for Parcel 58 (obtained by them for the purpose from Swiss American Bank of Antigua), well knowing that it had been superseded by the replacement land certificate referred to at paragraph 10 above, was inconsistent with the same and was neither accurate nor valid”.

[167]The fact of the matter is, as shown and noted above; the Claimant has abandoned the legal arguments which would have encompassed the above pleading. But in view of the common ground that there was collaboration between Philip T. English and Ernest Gilead, then an employee at the Land Registry, to secure duplicate land certificates, the issue of fraud must be addressed.

[168]Learned counsel Mr. Justin Simon, QC for the First Defendant advances a number of submissions in view of the duplicate certificates. In this regard, it is noted that the evidence were fraudulently filed and or created by one, Ernest Gilead and further, that the documents are not part of the records at the Land Registry which would negate the legitimacy [or otherwise] of the transactions.

[169]The further submission on behalf of the First Defendant amount to: (1) the documents produced or altered by Ernest Gilead did not form part of the Land Registry’s records and hence no title could result therefrom and (2) Gilead was on a frolic of his own and was not acting in further of his duties.

[170]In the end, Mr. Simon has asked the Court to dismiss the claim against the First Defendant. As they touch and concern the matter of fraud and rectification, they are as follows: 1. There is nothing in the evidence to suggest fraud or mistake on the part of the Registrar of Lands. ‘\ ‘ • \ 2. The parcel register cannot be rectified to record the Claimant as registered proprietor of Parcel 97 (formerly Parcel 58); title can only be changed upon the registration of an Instrument of Transfer in its proper form, the payment of the appropriate stamp duty, and the obtaining of a Non-citizen Land Holding Licence, should the Court find for the Claimant against the Second Defendant. 3. There has not been awrongful registration by the Registrar of Lands of Parcel 97 in the name of Anglo Swedish Developments Limited; 4. No proper Instrument of Transfer (inform and content) in favour of ‘English Haven Limited’ was presented to the Land Registry for registration.

[171]Since section 140(1} of the Registered Land Act is premised on the obtaining of registration, the Court accepts that the submissions on behalf of the First Defendant are correct. In short; despite the efforts of Ernest Gilead and Philip T. English, there was no registration. It is for this reason that the Register did issue a replacement with respect to Parcel 97 after searching all records at the Land Registry and processing of the application for mutation of Parcel 58. All Mr. English got from the whole affair was worthless expensive paper, signifying nothing.

[172]In summary, then the Court considers that the matter of rectification on account of registration by fraud is negative by the following facts: (1) The letter dated 11 th September, 1997 seeking Mr. Gilead assistance was written to him privately to the following address: “Sriars22 Hill Road, St. John’s, Antigua, West Indies”; (2) the US$12,OOO.OO that was paid for the replacement certificates has not been shown to have formed part of the Land Registry’s revenue; (3) the documents produced were collected at Mr. Gilead’s house in the evening; (4) there was no proper instrument of transfer in relation to Parcel 58 and English Haven Limited recorded at the Land Registry.

[173]Accordingly, the claim for rectification is refused. Issue No.6 21 See: Exhibit PTE 23 (Affidavit of Philip T. English filed on 8 th October, 2007). 22 Sic. • Whether the Claimant is entitled to be indemnified by the First and Third Defendants should the Court find that the Second Defendants are incorrectly registered as the proprietor of Parcel 58 [97].

[174]For reasons that are not apparent; the Claimant seeks indemnification rather than compensation under section 141 of the Registered Land Act. The rule is that where statute covers the field, the statute must prevail.

[175]Section 141 of the Act, to the extent of its materiality, provides that subject to the law relating to limitation of actions on persons who suffer damages by reason of the rectification of the register shall be entitled to compensation from the Government of Antigua and Barbuda out of money provided from the Consolidated Fund. The short point in this regard, however, is simply that rectification was refused which is the prescribed substratum for the payment of compensation or even indemnification.

[176]It is therefore the conclusion of the Court that the Claimant has no entitlement to be indemnified by the First and Third Defendants.

The Second Defendant’s counterclaim

[177]It will be recalled that the Second Defendant in its counterclaim is seeking declarations regarding the agreement of 8th February, 1997, title to parcel 58 and the entry on the Land Register with respect to the Claimant.

Agreement of 18th

February 1997

[178]Given the fact the Claimant has not sought to rely on this agreement but rather on an equity which arisen extra contract, and further, that adecision has been given on that equity, it is the view of the Court that judicial restraint should obtain. Title to Parcel 97 .,. • . ‘

[179]While the Court has detennined that the land certificate issued with respect to Parcel 97 was lawful, it went on to hold that the said parcel is being held on trust for the Claimant. Therefore, the question of an absolute title to the parcel does not arise.

Entry on the Land Register

[180]The evidence reveals that there was in law no entry in favour of the Claimant with respect to Parcel 58/97. This was conceded by the Claimant and hence their alternative claim in equity. Conclusion [18’1] In all the circumstances, the Second Defendant’s counterclaim is dismissed.

Costs

[182]The Claimant has succeeded against the Second Defendant and as such the Second Defendant must pay the Claimant costs in accordance with Part. 65.5 of CPR 2000. However, the totality of costs to the Claimant must await the award of damages, if any, after the assessment.

[183]The Claimant did not succeed against the First and Third Defendants and therefore the Claimant must pay costs to each of the First and Third Defendants in accordance with Part 65.5 of CPR 2000. ORDER IT IS HEREBY ORDERED, DECLARED AND DIRECTED as follows: 1. The Claimants’ prayer for adeclaration that it holds agood title to Parcel 58 is denied. 2. The Second Defendant holds Parcel 97 on trust for the Claimant and must give effect to the following directions which are subject to compliance with the Non-citizens Land Holding Regulation Act23 and all other relevant laws enactments: (i) within seven days of the presentation to the First Defendant of a validly drawn and attested draft transfer document prepared for the purpose of transferring title to Parcel 97 from Anglo Swedish Developments Limited to English Haven Limited, the First Defendant shall sign such document in place of the Second Defendant. (ii) deliver up Parcel 97 to the duly authorized representative of the Claimant forthwith upon the signing by the First Defendant of the said transfer document. 3. The Claimant is entitled to damages for loss of use and revenue from the villa on Parcel 97 by virtue of the occupation of the said Parcel 97 by the Second Defendant from February, 2007. Such damages are to be assessed after directions by aJudge of this Court. 4. The claim for rectification of the Land Register is refused. 5. The Claimant has no entitlement to be indemnified or compensated by the First Defendant and Third Defendants. 6. The Second Defendant must pay the Claimant costs in accordance with Part 65.6 (b)(iii), of CPR 2000; but the totality of the costs payable by the Second Defendant to the Claimant must await the award of damages, if any, after assessment. 7. The Claimant must pay cost to each of the First and Third Defendants in accordance with Part 65.5 (b) (iii). 8. The Second Defendant’s counterclaim is denied. Appreciation The Court wishes to record its deep appreciation for the high level of advocacy by counsel on aI/ sides and also for their kind assistance to the Court. ………………. ~ 1. …………….. . Errol L. Thomas Judge (Ag.) 23 Cap. 293 (Revised laws of Antigua and Barbuda).