A ‘Bobby’ Pottinger, the custos of St Mary, has been successful in his appeal to the United Kingdom-based Privy Council – Jamaica’s final court of appeal – to have his name kept as the registered proprietor of 34 plots of land on the Gibraltar Estate in St Mary, which he acquired in 1993.

In an 18-page judgment handed down recently, the Privy Council found that Pottinger did not wrongfully obtain the titles to the plots of land, as argued by the respondent against Pottinger, Traute Raffone, and upheld by Court of Appeal judges in March last year.

The matter, which had been languishing before the courts for almost 13 years, arose after Pottinger in 1993 successfully applied to become the registered proprietor of the plots, citing that he had been in possession of them for over 12 years without disturbance from the land’s original proprietor – a process called adverse possession.

In 1994, Raffone, who was seeking to recover ownership of 43 lots on the Gibraltar Estate she claimed she bought in 1986 – including the 34 claimed by Pottinger – brought action against the Registrar of Titles and Pottinger. She sought to have Pottinger’s name removed from the titles as registered proprietor.

Raffone had allegedly entered into agreements with the sole surviving director of the Gibraltar Estate Investment Company Limited, Hugh Sugarman, to purchase the 43 plots of land in 1986 and in 1994 sought to acquire ownership of them.

The matter was heard by now retired Supreme Court Justice Lloyd Ellis, who ruled that the sale agreement between Raffone and the director was void, granting Raffone no standing to challenge Pottinger’s ownership of the lands.

Raffone, however took the matter to the Court of Appeal, who ruled that Pottinger had wrongfully acquired the titles to the lands. Court of Appeal Judges – Justice Paul Harrison, Justice Donald Bingham and Justice Algernon Smith – said in their judgment that Pottinger had not been in possession of the land for the 12-year minimum required for adverse possession to take effect. Pottinger’s possession of the land, they said, could only take effect after the date of the unsuccessful sales agreements – February 23, 1983 – he entered into with Sugarman and later with Raffone’s husband to buy the 34 plots. They also claimed that by virtue of entering into the sales agreements, Pottinger acknowledged ownership of the land to its true owner, the Gibraltar Estate Investment Company Limited.

Pottinger stated in a declaration to the Registrar of Titles as he sought to acquire the lands by adverse possession that he took possession of the lands in 1975.

After the Court of Appeal verdict the Registrar of Titles was then instructed to remove Pottinger’s name from the Register of Titles as the registered proprietor of the lots. Pottinger, however, appealed that order and took the matter to the Privy Council, which heard the matter on March 5 and 6.

The Privy Council, in its judgement, said that despite Pottinger’s entering into sales agreements with both men, this was not inconsistent with him being in possession of the land for purposes of acquiring their titles. In this way even if a squatter enters into discussions with the owner of a piece of land after laying claim to the land, adverse possession has not been defeated, the judgement said.

The judgment further stated that if the sales agreements between Pottinger and the two men were genuine and had been signed by Pottinger, they “refer to Mr Sugarman and Mr Campbell: they make no reference to the company (Gibraltar Estate Investment Company Limited)”, who originally owned the lands. In this way they did not constitute, for Pottinger, the acknowledgment of the company’s title to the lots.