REF/2015/0186

REC/2014/0039

PROPERTY CHAMBER LAND REGISTRATION

FIRST-TIER TRIBUNAL

IN THE MATTER OF A REFERENCE

UNDER THE LAND REGISTRATION ACT 2002

 

 

BETWEEN

MR RIZA ELCI

 

APPLICANT

and

 

MRS NURSEL ELSI

 

RESPONDENT

 

Property Address: 101 Chase Road, Southgate, London N14 4LA

 

Title Numbers: MX245994

Before: Judge Owen Rhys

Sitting at:  10 Alfred Place London WC1E 7LR

On: 15^th April 2016

Applicant representation:                 Ms Hyatt of Counsel instructed by Ozkutan Solicitors

Respondent representation:             In person

           

________________________________________________________________________­__________

D E C I S I O N

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1.      By an application dated 17^th December 2014, the Applicant applied to Land Registry to alter the register of the 101 Chase Road, Southgate, London N14 4LA (registered as title number MX245994) to which I shall refer as “the Property”.  The basis of the application was a claim that the Property had been vested in the sole name of the Respondent, the Applicant’s former wife, by means of a forged Transfer dated 13^th February 2013 (“the Transfer”).  The Property was originally registered in the joint names of both parties, and was purportedly transferred into the sole name of the Respondent by the Transfer.  However, it is his case that he never signed the document, and that his simulated signature was placed on it by the Respondent.  The Respondent objected to the application, and contends that the Applicant did indeed sign the Transfer and denies all allegations of forgery.  The dispute was referred to the Tribunal by Land Registry on 9^th March 2015, and the oral hearing came on before me on 23^rd March 2016.  The Applicant was represented by Ms Hyatt of Counsel, and the Respondent represented herself.

 

2.      At the hearing, the Applicant and the Respondent verified their witness statements on oath, as did the Respondent’s sister Katriye and her (and the Applicant’s) son Cengiz.  Katriye and Cengiz gave evidence in support of the Respondent.  All parties were cross-examined on their statements.  In addition, the Applicant relied on the report of Ms Ellen Radley, a forensic document examiner, but she was not called to give oral evidence and could not therefore be asked any questions on her opinion as to the authenticity of the purported signature on the Transfer.

 

3.      In his (undated) witness statement the Applicant states that he originally purchased the Property using some £70,000 of his own money and the balance (of £63,000) funded by way of a loan secured by mortgage. He states that the Respondent never made any contribution to the purchase.  He sates that in 2013 “The Respondent took me to Barclays Bank to close our mortgage account. I presented my passport as proof of my identity to the member of the Bank. I now note that the certified copy of my passport (certified by the Bank) was sent to the Respondent’s conveyancer who was dealing with the transfer of the property….. I was not aware that the Respondent had transferred the property into her sole name until I went to a solicitor to get advice on a different matter.”   Mr Elci, who used the services of an interpreter, was questioned about this evidence.  When I asked him why he was being asked to provide proof of his identity to Barclays Bank, he told me that it was in order to close his joint account with Mrs Elci.  The certificate from the Bank is dated 19^th November 2012.  One of the documents in the evidence before me is a letter dated 2^nd June 2014, signed by the parties, asking Barclays Bank to close their joint account 30608815.

4.      Mrs Elci gave evidence, and robustly denied that she had ever forged her husband’s signature.  She said that her husband had left her and their four children to live in Turkey between 1991 and 2012, where he resided with another woman.  She said that he took no responsibility for the family finances, and she had made all the mortgage repayments on the Property with help from her children.  This was funded through earnings and associated State benefits.  When Mr Elci returned from Turkey in 2012 he wanted to make amends, and agreed to vest the Property in her as sole owner.  Lawyers were instructed – Conveylaw conveyancers – who wrote to them both at the Property and required Mr Elci to prove his identity by obtaining a certificate from a suitable person.  That was the reason for their visit to Barclays Bank, whose official required him to identify himself by means of his passport.  They did as they were requested, hence the certificate dated 19^th November 2012, completed when they both attended the Bank in person on that day. She said that the Transfer was signed by both of them. In response to the suggestion from the document examiner that the signature of Mr Elci did not appear genuine, she pointed to a number of different ways in which he signed his name and said that Mr Elci had no single consistent way of signing his name.

 

5.      Mrs Katriye Adnan’s evidence was to the effect that she had been at the Property on one occasion when she saw the Applicant, the Respondent and “an elderly man” signing a document, which she was told was a “TR1”.  The elderly man was said to be the witness, Dr Laurence Fisher.  Mr Cengiz Elci stated that he was also there on the same occasion, and observed his father and mother signing a document “in the presence of my father’s friend who witnessed and signed his name”.  He added that the table on which the document was signed was “not in good condition..”.  It was put to both of these witnesses in cross-examination that they had fabricated this evidence to assist the Applicant, the sister and mother of the witnesses respectively.  They denied this.

 

6.      The final piece of evidence is the expert report of Ms Radley. Her headline opinion is that “there is very strong evidence to support the proposition that Mr Elci did not write the signature appearing on the questioned Transfer dated 13^th February 2013”.  However, Ms Radley accepts that her opinion needs to be qualified because the examined document – the Transfer – was a copy rather than original document.  Despite that, she is confident that the copy document is “satisfactory for an examination”.  She opines that the sample signatures furnished by Mr Elci themselves display variations, but nevertheless generally they “follow the same master pattern”.  However, she considers that the (copy) questioned signature does not conform to this master pattern.  She concludes that the signature is either a “freehand simulation of Mr Elci’s signature style” or “a poor tracing of a genuine signature”.  In the expert’s declaration she declares (at para.12 (i)) that “my report will form the evidence to be given under oath or affirmation;” Despite this, she did not attend to be questioned on her report from the witness box.

 

7.      In terms of documents contemporaneous with the Transfer, certain material has been produced.  The first document is a pro forma “Welcome Pack” issued by “Conveylaw conveyancing lawyers”.  This contains the client’s instruction to the conveyancers to effect the intended transaction, namely the transfer of the Property from joint names into the sole name of the Respondent.  The document bears the signature of both Mr and Mrs Elci.  The Applicant has also produced a letter dated 14^th November 2012 from Conveylaw, addressed to him at the Property, informing him that they could not act for him in the proposed transaction since their client was Mrs Elci, and advising him to obtain independent legal advice.  They informed him that he would need to obtain “third party verification form together with certified photographic identification…”  Finally, there is the document signed by a Barclays Bank official, certifying the identity of Mr Elci by reference to his passport.   This is dated 19^th November 2012. 

 

8.      This, in outline, is the evidence of the parties on the basis of which I must decide this case.  There is a complete conflict of evidence between the Applicant and the Respondent and her witnesses, and of course the Applicant also relies on the expert opinion of Ms Radley that the Applicant’s signature on the Transfer is a simulation. I shall consider the expert’s view in due course.

 

9.      I shall now assess the evidence of the witnesses who gave evidence orally.  First, the Applicant.  I did not find his evidence to be satisfactory, in at least three material respects.  First, when he was asked about his visit to Barclays Bank in November 2012, where he produced his passport so that his identity could be verified by a Bank official.  In his witness statement, he said that he had (in effect) been tricked into attending, believing that this was for the purpose of closing their mortgage account.  Under cross-examination, however, he said that he went to the branch for the purpose of closing their joint bank account, but he could not remember being there in 2012.  However, there is evidence available (produced by him as an example of his signature) that it was not until June 2014 that he and his wife applied to close their joint account.  Although Mr Elci used the services of an interpreter, from time to time he would answer questions in English and I do not believe that he would have any difficulty in confusing the mortgage account with the joint bank account.  In short, his explanation for the (crucial) visit to Barclays Bank changed during the course of his evidence.  Secondly, he accepted that he had signed various documents at Mrs Elci’s request.  He said that he had signed three documents.  It was not at all clear what documents he was referring to, although he did mention a subsequent divorce petition.  However, it is to my mind highly significant that he has never challenged his signature on the pro forma instructions to Conveylaw to transfer the Property into the Respondent’s sole name. This was not a questioned signature for the purposes of Ms Radley’s report, and I think it must be taken that the Applicant admits that this is his signature. This may well be one of the three signatures that he referred to in his evidence.  I should also mention a third issue.  He stated in his Statement of Case and his witness statement that the Respondent never helped financially towards repayment of the mortgage.  This was an interest-only mortgage and was supported by an endowment policy in their joint names.  However, it is quite clear from the documents provided by the Respondent that this was untrue – she can demonstrate that payments of mortgage interest and endowment premiums were paid by her, funded by earnings and various State benefits.  His evidence on this point is unreliable.

 

10.  Mrs Elci’s evidence was consistent throughout.  She has said from the beginning that Mr Elci gave her his share of the Property due to a guilty conscience.  She feels very strongly indeed that he abandoned her and their children when he resided in Turkey for many years with his other family.  She is adamant that Mr Elci intended to effect the transfer of his interest in the Property and did in fact execute the Transfer itself. I must of course be alive to the possibility that her strong feelings towards the Applicant have compromised her truthfulness as a witness. However, although combative and sometimes impatient when giving evidence, in cross-examination her answers were both consistent with her written evidence and her recollection of the material events was detailed.  I therefore regard her as a reliable witness.  The evidence given by her sister and son of course support her recollection of the actual signing of the document by Mr Elci. 

 

11.  I must also consider the “objective evidence” – that is, evidence furnished in the form of contemporaneous documents.  There is little of it, but two particular documents are, in my judgment, important.  First, the instructions to Conveylaw, to which I have already referred.  Mr Elci’s signature on this document has not been challenged – certainly, the signature was not submitted to Ms Radley for forensic examination.  He may well have accepted signing the document, if his confused and confusing evidence in cross-examination (regarding the three signatures) can be relied on.  I find that he did sign the document, which states in terms that the purpose of the Transfer is to transfer his share in the Property to his wife. This is wholly inconsistent with his present case, to the effect that he knew nothing about the Transfer until long after the event, and it came as a complete surprise to him.  Secondly, the signed Certificate by Bank, verifying his identity, is also entirely consistent with the Respondent’s case.  Mr Elci’s explanations simply do not make sense.  The only reason for a formal verification of identity would be to comply with the advice of Conveylaw, in their letter to Mr Elci sent a few days before the meeting at the Bank.  The instructions to close the joint account were given, by letter, in 2014.  The mortgage account would be closed automatically at the end of the mortgage term, as the correspondence demonstrates, and no further transaction was required or contemplated.  It is not credible that Mr Elci, a businessman with some familiarity with property, could possibly have been confused as to the reason for the Bank’s certificate.  In my judgment, therefore, these two unchallenged documents provide strong support for the Respondent’s case and substantially undermine the Applicant’s case.

 

12.  However, the Applicant does not only rely on his own testimony, but he also relies on the report of Ms Radley to which I have referred. This advises, fairly unequivocally, that the questioned signature on the Transfer is either a “freehand simulation of Mr Elci’s signature style” or “a poor tracing of a genuine signature”.  Opinion evidence as to the authenticity of a signature can be helpful, indeed critical, in certain cases.  This is particularly the case where the original of the questioned document is available, and the paper itself can be tested for tracing marks or guidelines usually associated with forgeries.   Even where, as here, only a photocopy of the original is available, such expert opinion can be helpful.  Where other evidence is available, it forms one element of the material upon which the court or tribunal must base its findings.  It is not to be accorded any greater or lesser weight than any other piece of evidence.

 

13.  I have certain reservations about Ms Radley’s report.  I would have liked to ask her the extent to which she would qualify her opinion, due to the absence of an original signature (see paras. 13-15 of her Report).  I would have liked to ask her why she could not be more precise as to the nature of the alleged forgery – namely, whether it was a simulation strictly so called, or a tracing – and whether this called into question her opinion that the signature had been forged. I would have liked to ask her why she considered that the very considerable variety in signature styles, adopted by Mr Elci, did not affect her final conclusion.  There are a number of other specific questions which I would have liked to have put to her, but could not do so since she did not attend the hearing, even though she herself anticipated giving live evidence - “my report will form the evidence to be given under oath or affirmation;”.  It may be that she was not called for costs reasons, or by some oversight, but unfortunately the result is that I do not think it is right to simply accept it at face value.

 

14.  Even if I did accept it at face value, I would still have preferred the evidence of the “live” witnesses who attended and were cross-examined.  The evidence of the Respondent and her witnesses, coupled with the documents I have referred to and the unsatisfactory nature of the Applicant’s evidence, satisfies me that the Applicant did indeed sign the Transfer. Indeed, the burden of proving that his signature was forged rests with Mr Elci, and in my judgment he has signally failed to discharge that burden. 

 

15.  I shall therefore direct the Chief Land Registrar to cancel the Applicant’s application dated 17^th December 2014.

Dated this 29^th day of April 2016

 

 

BY ORDER OF THE TRIBUNAL