A real estate agent who was acquitted after being accused of allowing his secretary, an unregistered employee, to sell property has had his verdict set aside by the Appeal Court of the Supreme Court.

Ivan Macdonald Clarke was acquitted in January 1999. But the Director of Public Prosecutions appealed on behalf of the Registrar of Companies, and on Friday it was revealed that the appeal had been allowed.

However, the Court of Appeal judge listened to evidence about the failing health of Mr. Clarke and did not order a re-trail.

Chief Justice Austin Ward, while granting the appeal, said he "made no further order'' in the matter.

Clarke, of Union Street, denied letting his assistant Malika Battersbee sell property on Robert's Avenue, Devonshire, to Juliana Swan between January 19 and 27, 1998, and to Albert and Mary Woods between January 27, and February 3, 1998.

Clarke also denied letting Battersbee trade in real estate with Zurie Tate an Delmika Burchall between December 1 and 6, 1997, when they tried to rent property on Robert's Avenue.

He admitted to refusing or neglecting to turnover the financial records of Carbella Real Estate to the Finance Ministry between January 8 and June 8 of 1998.

Battersbee was fined $500 last December after pleading guilty to trading without a licence.

In December last year Mr. Clarke, 67, declined to take the stand or call witnesses stating it was his right to do so. In January he was acquitted.

In his written findings Mr. Justice Ward said: "At the very least the evidence leads to the conclusion that the respondent (Clarke) held himself out as a real estate agent and for the purpose of the act was an agent.'' He added: "There was also evidence from which it could be inferred that the respondent knew of and approved the actions of Battersbee in connection with... the transactions.

"For the above reasons the application must be allowed on ground one of the appeal.'' But the judge stopped short of ordering a retrial. He said: `There remains the issue of what further order, if any, should be made in the circumstances.'' The Chief Justice added that it was within the law to set aside the dismissal of information and the matter may be referred to a court to convict or "otherwise proceed''.

He said: "Application has been made by counsel for the appellant for an order for re-trial of the information.

"That application has been resisted by counsel for the respondent on the ground that the trial was protracted involving many appearances by the parties and witnesses, the expense to the respondent, and the changed personal circumstances of the respondent who no longer operates the real estate agency and who is faced with serious challenges to his health including failing eyesight. The appeal is allowed and the verdict of acquittal is set aside. I make no further order.''