A3/01/1781

Neutral Citation Number: [2001] EWCA Civ 1911
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR D DONALDSON QC (Sitting as a Deputy Judge of the Chancery Division))

								Royal Courts of Justice
								Strand
								London WC2A 2LL

								Thursday 29 November 2001
B e f o r e:

LORD JUSTICE ALDOUS

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JOSEPH NELSON
Claimant/Applicant

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1.  MATTHEW DIXON NELSON
2.  JOSEPH ST ROSE
3.  PARDEEP PABILA
Defendants/Respondents
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040  Fax: 020 7831 8838
Official Shorthand Writers to the Court)
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MR JONATHAN COWEN (Instructed by Messrs A H Page, Ilford, Essex, 1G6 1HQ) appeared on behalf of the Applicant.

The Respondent did not attend and was not represented.

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J U D G M E N T
1.	LORD JUSTICE ALDOUS: The claimant, Mr Joseph Nelson, seeks permission to appeal the order of Mr David Donaldson QC, sitting as a deputy judge of the Chancery Division, dated 25 July 2001 which dismissed the claimant's claim and ordered him to pay costs. 
2.	The proceedings concern the ownership of a property known as 18 Arundel Gardens. It was purchased in the name of Joseph St Rose and in December 1994 was transferred to the third defendant, Mr Pabila. The proceeds of sale were paid to the second defendant, Mr Joseph St Rose. It was the claimant's case that he had used the name, Joseph St Rose, as an alias to purchase the property because he was facing difficulties with two local tax offices at the time. He claimed that he was therefore entitled to the proceeds of sale.
3.	The claimant was born in 1936 in St Lucia. His mother, Juliette Nelson, subsequently married a Mr St Rose and had further children. One of those children, Joseph, was the second defendant. 
4.	The claimant came to the United Kingdom in the 1950s and he has lived here ever since. He moved to Ilford in about 1979 and subsequently bought 18 Belgrave Road, Ilford, which he retained until about 1996. He purchased other properties as an investment, one of which was 16 Felbrigge Road. It is clear from correspondence between him and h is solicitor and the solicitors' file notes that he used a number of aliases, including the names of Joseph St Rose, Dixon and Dixon St Rose. The judge's conclusion was: 
“I have little doubt and I think the natural conclusion to be drawn from that is that...”
5.	The judge was referring to the file notes.
“... the claimant was indiscriminately using these various names and indeed was known to Shukla & Co by all of them.”
6.	In 1993 a bankruptcy petition was presented against the claimant resulting in a bankruptcy order in October 1994. That order was annulled in 1997 after payment of the debts. That occurred, as the judge held, by reason of the sale of 18 Belgrave Road in 1996 and the use of the proceeds to pay off the debts. However, as the judge held, the claimant did not inform his trustee in bankruptcy of the existence of his other properties and, in particular, 18 Arundel Gardens, which he now says was one of his assets. 
7.	In the Spring of 1994 the claimant instructed an estate agent to sell 18 Arundel Gardens, which at that time was valued at about £100,000. In May 1994 an offer was made of just over £97,000. The claimant agreed to accept the offer. Before that transaction could be concluded, the first defendant, Matthew Dixon Nelson, arranged a sale on behalf of his uncle, the second defendant, Joseph St Rose. That resulted in contracts being exchanged on 13 October with the third defendant, Mr Pabila. The first defendant signed on behalf of his uncle pursuant to a power of attorney. Eventually, the land certificate was released and the transaction was completed in March 1995. The first defendant therefore received the purchase money on behalf of his uncle and he remitted it to St Lucia where his uncle lived. 
8.	The crucial issue before the judge was whether the name Joseph St Rose in the legal transfer of 1987 of 18 Arundel Gardens, and the corresponding entry in the land registry, referred to the claimant or to the second defendant, Mr Joseph St Rose, who was at that time resident in St Lucia. The claimant's case was that the name on the transfer was an alias. The evidence in the case of the defendants was to the contrary. 
9.	The judge had before him a clash of testimony and of contention. The judge gave his view of the witnesses. He said that the nature and content of the claimant's testimony was such that he found it impossible to place any reliance on it save to the extent that it was supported by documentary material. He also said that he had significant reservations about the reliability of the first defendant and of his brother and therefore he was not prepared to base his decision on their evidence. His conclusion was: 
“Ultimately, I am thrown back upon a consideration of the inherent probabilities and the documentary material.”
10.	That conclusion of the judge was not a very good starting point for the claimant, upon whom the burden of proof rested, to establish that the name Joseph St Rose did not mean the man of that name (the second defendant), but in fact was meant to be the claimant whose name was Nelson. 
11.	The judge first considered the question of the origin of the monies vested in 18 Felbrigge Road. He recorded that it was the claimant's case that the monies invested in the property had been derived from his hard work as an electrician. On the other side it was suggested that over the years since the claimant's departure from St Lucia, the claimant and the second defendant had cooperated in property ventures in both the United Kingdom and St Lucia and that the second defendant was in this way interested in Felbrigge Road. The judge concluded that he had no reliable evidence on which he could come to a conclusion either way. That, he recorded, was not determinative because, even if the second defendant had no financial interest in Felbrigge Road or in the purchase of Arundel Gardens, the claimant's preoccupation with the tax authorities might well have led him to vest the legal title in the second defendant. The conclusion being that, if it was intended that the legal title was to be in the name of the second defendant, then his claim that it was purchased in an alias was incorrect. His cause of action in that case was for breach of contract or for some other claim against the second defendant. 
12.	The judge went on to deal with the reasons as to why he concluded that the claimant had not made out his case. He said: 
“In deciding whether the words Joseph St Rose in the transfer and registration refer to the claimant or second defendant, the following considerations appear to me of greater significance. Firstly and perhaps most fundamentally, the claimant chose to instruct his solicitors to conclude the transaction and take the transfer in the name of a known and existing individual and indeed his half brother. In this regard, the purchased of Arundel Gardens differed from the earlier purchase of Felbrigge Road, where he had used the artificial name of Jeffrey Nelson Dixon. Indeed the claimant was unable to explain why he had not simply used the existing alias or some other artificial name. The natural inference is, in my judgment, that he intended something other than an alias.”
13.	Mr Cowen, who appeared before me, submitted that the judge's conclusion in that paragraph was inconsistent with the previous findings that he had made. He also submitted that it was a relevant consideration as to where the money came from. He said that it appeared that the money had come from the proceeds of Felbrigge road. Thus, he submitted that it was likely that the money to purchase Arundel Gardens came from that money and it was inherently probable that the judge failed to take that into account. 
14.	That is not correct. In the passage to which I have referred, the judge did consider where the money came from. He came to the conclusion that it was not possible on the evidence to come to any conclusion as to whether the money used for the purchase came from the claimant or the second defendant or was money given to the second defendant for the purchase of the property in his name. 
15.	Mr Cowen also drew attention to the fact that it was clear from the earlier part of the judgment that the claimant had used a number of aliases, including the name Joseph St Rose. As the judge held, that is right.
16.	However, I do not believe that the reasoning of the judge is contradictory. The judge said that the claimant chose to instruct his solicitors to conclude the transaction in the name of a person whom he knew existed. He could have chosen any alias, from Geoffrey Dixon to any other name. When he was asked about the fact that he had chosen the name of an existing person, he was unable to explain why he had not simply used an existing alias or some other artificial name. The judge came to the conclusion he intended something other than an alias. That was a conclusion which he was entitled to reach. 
17.	The second part of the judge's reasoning is contained in the passage at the top of page 10 of the judgment where he said: 
“Secondly, I note the content of a declaration which he made on 6th December 1994, a copy of which he gave to Mr Reid. In that document he said:
'1) On 14 October 1987 I decided to purchase a house. Prior to this I contacted my brother Joseph St Rose to let him know I was using my christian name and my mother's surname which are the same as my brothers. 2) We agreed between us to use the name Joseph St Rose on the deed.'
In evidence after, to put it mildly, considerable prevarication, he said that he probably did contact his brother. I can see no reason why he should have done that and as he put it in his declaration 'agreed between us to use the name Joseph St Rose' if the name were merely an alias and every reason for doing so if the intention was to vest the legal ownership of the property, or the legal title in the property in his brother.”
18.	Mr Cowen drew attention to the fact that the declaration had been produced by the claimant. He submitted that, in those circumstances, there was no reason to believe that it was other than correct and supported his client's case. If it had been to the contrary, then he could have suppressed it. I believe the judge was entitled to reach the conclusion which he did. Here he had a witness who, after considerable prevarication, agreed that he did contact his brother as was stated in the declaration that he produced. Why would a witness not accept that he did contact his brother when it was stated in the document? The judge's conclusion was that if the name was merely an alias, there was no real reason to contact his brother. The inference was that the claimant wished to vest the property in his brother, perhaps to avoid the tax difficulties which he was in. 
19.	The judge went on to give another reason. He said: 
“Thirdly, on 20th April 1990 the second defendant, before solicitors in Barbados, executed a power of attorney in favour of the claimant to manage the premises at Arundel Gardens. (The date may possibly be connected with the installation of tenants from whom rent would have to be collected). At all events, a power of attorney executed by the second defendant made sense only on the basis that the second defendant was the legal owner of the premises, as indeed the power of attorney recited. It was also accompanied by an affidavit sworn on the same day in Barbados in which the second defendant deposed that he was the sole and beneficial owner of 18 Arundel Gardens and was executing the power of attorney because of the fact that he was resident out of the United Kingdom.
These documents were produced by the claimant himself as an exhibit to his witness statement dated 19 May 1999 in these proceedings. In paragraph 6 of that witness statement he says, 'It is my belief that the documents are fraudulent', but he gives no explanation as to why, if they are fraudulent, he was in possession of them. I see no reason to believe that these documents are other than authentic and executed and delivered to the claimant for their announced purpose of enabling him to manage the property at Arundel Gardens on behalf of the second defendant.”
20.	Mr Cowen points to the fact that these documents were produced by the claimant. However, they are only understandable on the basis that the claimant and the second defendant knew that the legal owner was the second defendant. Whether there was some agreement between the claimant and the second defendant that the second defendant would only be the legal owner and in equity would not be the owner, is a question which was not before the judge. 
21.	In my view, despite the fact that the second defendant did not give evidence, and despite the fact that the evidence of the other witnesses for the defendant was not completely satisfactory, that document was contrary to the claimant's case. 
22.	The judge's conclusion was: 
“Having regard to these three matters, the claimant has failed to satisfy me that the words Joseph St Rose in the transfer of registration did not designate the human being who bears that name, namely the second defendant, and instead referred to the claimant. Indeed, in my judgment, the natural inference from these three matters is to the contrary. I should stress that the internal arrangements as between the claimant and the second defendant were not a matter on which I was asked to rule, nor would the state of the evidence have permitted me to reach any conclusions on that subject. The question before me is solely one of who was the legal and registered proprietor of Arundel Gardens. I am not concerned with whether the second defendant, as legal owner, held Arundel Gardens in trust in whole or in part for the claimant.”
23.	It is to be noted in that passage that the judge's conclusion was that the claimant had not made out his case. In my view he was entitled to come to that conclusion. He had a witness who was unsatisfactory. When the crucial questions were put to him he prevaricated. There was no satisfactory evidence, apart from inference, to suggest that he was the legal owner; in fact the documents suggested to the contrary. It may well be that the second defendant held the property upon trust for the claimant, but that was not the case that was put before the judge. If one were to speculate, which is not my role, I have a feeling that the property was deliberately put in the name of the second defendant for the purposes of avoiding tax. The name was not an alias. 
24.	In my view the judge was the person who had to decide this matter. It was a question of fact which he had to decide after hearing the witnesses and considering all the documents. This is a case in which there is no real prospect of this court, on a review, coming to a different conclusion upon the facts. 
25.	I therefore refuse permission to appeal. 
Order: Permission refused.