Land registration – Fraud – Evidence – Respondents applying to register transfers – Appellant objector claiming to be registered proprietor – HM Land Registry referring appellant’s objections to First-tier Tribunal (FTT) – FTT finding appellant’s objections not established – Whether FTT’s decision dealing sufficiently with conflicts of evidence – Appeal dismissed
In 1967, the appellant, his wife and their three older children came to the United Kingdom from Kenya, settling in Rochdale. At that time his family name was Malik. In 1978, the appellant and his wife changed their name from Malik to Awan. The appellant owned six properties in and around Rochdale, which were transferred to two of the appellant’s sons (the respondents).
The transfers were purported to be made pursuant to a deed of gift in 2016. The name of the transferor was stated to be Malik and in each case one or other of the respondents was the transferee. It was common ground that the appellant did not execute the transfers.
When the respondents sought to register the transfers, the appellant objected claiming to be the rightful owner of the properties. He contended that the deed of gift was a forgery procured by the respondents to justify the transfers and denied that he had made or authorised the transfers. HM Land Registry referred the appellant’s objections to the First-tier Tribunal (FTT). The respondents denied that Malik and Awan were the same person and maintained that the properties had been transferred to them by the registered proprietor, a family friend living in Pakistan who held the properties on trust for them.
The FTT found that, on the evidence, the appellant’s objections had not been established and directed the Chief Land Registrar to give effect to the applications for registration as if the appellant’s objections had not been made.
The appellant appealed, contending that the FTT had failed properly to consider all the evidence or to weigh up and analyse the competing arguments before deciding that the appellant’s evidence was not credible.
Held: The appeal was dismissed.
(1) When dealing with an appeal against findings of fact based on a suggested lack of reasons in the decision of a first instance court or tribunal, it was notable that succinctness was desirable in a judgment. It was not necessary to deal expressly with every point, but a judge had to say enough to show that care had been taken and that the evidence as a whole had been properly considered. Which points needed to be dealt with and which could be omitted required an exercise of judgment. In particular, fairness required that a judge should deal with apparently compelling evidence, where it existed, which was contrary to the conclusion which he proposed to reach and explain why he did not accept it. If those requirements were not followed, the reasoning of the judgment would need to be particularly cogent if it was to satisfy the demands of justice. Otherwise, there would be a risk that an appellate court would conclude that the judge had plainly failed to take the evidence into account: Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413 applied.
(2) The identity card in the name of Malik was a critical piece of evidence as one of the documents relied on by the appellant when he wrote to the Land Registry objecting to the registration of the transfers. He used it at that time to demonstrate that the signature on the transfers was not his and that he went by the name Malik. Later he produced a second identification card in the name Awan. Both cards bore a photograph of the appellant but for documents purporting to identify the same person there were a number of striking differences between them, including the date of birth and the address.
The FTT found that the Malik identity card on which the appellant relied was not a genuine document. Given the differences between the two cards it was impossible to say that that was not a conclusion which was open to the judge. The judge’s finding that the appellant had not used the name Malik since 1978 was based on his own evidence given in cross examination. However, it was clear that the judge’s omission to mention the appellant’s own evidence that the card was not genuine, could not now be used to cast doubt on his wider conclusion that the appellant was not the registered proprietor. If, as the appellant asserted, the Malik card was fabricated by his son, it could not support his own case that from time to time he used that name for official purposes.
(3) The matter referred to the FTT by HM Land Registry was the appellant’s objection to registration of the six transfers in favour of his sons. The question for the FTT was therefore whether the objection was made out. The burden of proof on that issue lay on the appellant who was required to substantiate his objection. The FTT was not required to reach any conclusion on whether the respondents were entitled to be registered; that remained a matter for HM Land Registry to determine.
It was impossible for the judge to reach a conclusion on the allegations and counter-allegations on the basis of the material supplied to him because they depended on the bare assertions and denials of the parties themselves, with all apparently independent verification challenged as fabricated. Faced with a morass of inconsistent evidence, unsupported for the most part by contemporaneous documents or independent corroboration, the FTT was entitled to focus on the material relied on by the appellant to make out his objection. The judge was also entitled to rely on the appellant’s own evidence that he had not used the name Malik in the UK or Pakistan since 1978, and on his own acknowledgement that the Malik identity card was not a genuine document.
(4) The court was satisfied that the FTT was entitled to dismiss the appellant’s objection to registration on the evidence provided to it and that the reasons it gave, short though they were, dealt adequately with the critical point in the case and with the significant material relied on by the appellant. All the judge was called upon to determine was whether the appellant’s objection to registration was made out and, for the reasons he gave, he was entitled to conclude that it was not.
Michael Bailey (instructed by Liberty Solicitors) appeared for the appellant; Michael Hoffman (instructed by Silverdale Solicitors, of Manchester) appeared for the respondents.
Eileen O’Grady, barrister
