Philip A. Mitchell & Brenda Mae Mitchell v Finance Corporation of The Bahamas

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeMr. Justice Jones, JA,The Honourable Mr. Justice Jones, JA,The Honourable Dame Anita Allen, P,The Honourable Mr. Justice Isaacs, JA
Date21 March 2018
Docket NumberSCCivApp. No. 109 of 2014

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Before:

The Honourable Dame Anita Allen, P

The Honourable Mr. Justice Isaacs, JA

The Honourable Mr. Justice Jones, JA

SCCivApp. No. 109 of 2014

Between
Philip A. Mitchell & Brenda Mae Mitchell
Appellants
and
Finance Corporation of the Bahamas
Respondent
Appearances:

Appellants appeared Pro Se

Mr. Oscar Johnson with Mrs. Tara Archer-Glasgow and Mr. Audley

Hanna, Counsel for the Respondent

Citibank N.A. v Hutchinson (1996) BHS J No. 127 considered

Lesage v Mauritius Commercial Bank [2014] UKPC 41 applied

Morley v Family Guardian Insurance Co. Ltd [2014] 1 BHS J. No. 105 applied

Vincent v Premo Enterprises (Voucher Sales) Ltd (1969) 2 QB 609 considered

Xenos v Wickham (1966) LR 2 WHL 296 distinguished

Civil appeal — Apparent bias — Validity of the Mortgage — Mortgage — Further charge — Arrears of mortgage — Vacant possession — Flawed or inadmissible evidence — Rules of the Supreme Court Orders 2, 73, 77 — Section 3 of the Money Lending Act

The appellants obtained a mortgage and various further charges from the respondent over land at Twynam Heights. By letter in June 2009, the appellants were notified of a breach of the conditions of the mortgage and further charges by failing to make the loan payments; they were advised that if they did not pay the outstanding amount of $319,164.86 legal proceedings would be commenced against them. The loans were not brought current and they refused to vacate the home to allow the respondent to exercise its power of sale. In the circumstances, an action was commenced by Originating Summons in the Supreme Court whereby the respondent sought vacant possession and the amounts outstanding under the mortgage. The appellants filed a cross-action to strike out the respondent's Originating Summons.

Between the end of the hearing in November 2013 and the delivery of the judgment the appellants sent multiple letters to the Court complaining of the delay in the delivery of the judgment; the appellants also sent a complaint the Chief Justice.

In April 2014 the trial judge gave judgment to the respondents and ordered the appellants to pay the outstanding amounts under the mortgage and charges; the judge struck out the appellants' cross-action. He further ordered that in the event the appellants failed to pay the outstanding amount they should give vacant possession to the respondent within sixty days. The appellants now appeal the decision of the learned judge.

Held:

appeal dismissed. Costs to the respondents, to be taxed if not agreed.

The appellants contend that due to their demands to the trial judge to deliver judgment and their complaint to the Chief Justice the trial judge could be perceived to be bias against them. When considering apparent bias the test is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. It is a proposition of law that judges must not only be free of personal bias but also from the perception that they are biased. In the present case, a fair minded and informed observer knowing all the facts that are capable of being known by the public would not conclude that there was a real possibility of bias on the part of the learned judge in rendering his decision in this matter.

Regarding the validity of the mortgage, the appellants argue that the terms of the mortgage cannot bind them, as what they signed was not a mortgage deed. Second, the appellants argue that there was no intention to be bound by the terms of the document as the terms were not available at the signing. Third, they argue that, the mortgage is invalid as a fraud, with the result that the respondent is unable to claim for indebtedness on any of the three loans. As was noted by the judge in the court below, it is not sufficient for a party to simply deny the validity of the mortgage and thus create a bar to the grant of the order sought. The Court must be satisfied that there is some evidence which gives rise to a serious issue in that the evidence is sufficiently cogent to warrant trial.

The appellants also complain that the indentures are not valid having regard to section 1(2) of the Law of Property (Miscellaneous Provisions) Act 1989 (the LPA) and sections 21 and 45 and the Second Schedule to the Conveyancing and Law of Property Act (the CLPA). However, the LPA referred to by the appellants does not exist in The Bahamas. Second, the appellants have not provided any basis to support their contention that under section 21 of the CLPA, the judge below ought to have concluded that a mortgage did not exist. Third, the provisions of section 45 and of the Second Schedule of the CLPA, are not set in mandatory terms but provide a guide as to what is required to constitute a valid mortgage. The indenture in this case satisfied the requirements of section 45 of the CLPA and constitute a valid mortgage.

The appellants contend that the judge was wrong to say that this case was brought under Order 77 Rule 1 (a) and (d) of the Rules of the Supreme Court (RSC) as on its face the Originating Summons was brought under Order 73 Rules 2 and 4 of the RSC. The particulars required to be set out in Order 73 of the RSC are not essential in an Originating Summons commencing a mortgagee action under Order 77 of the RSC.

Further, the appellants assert that the judge should have given relief under section 3 of the Money Lending Act (MLA) as there were unaccounted sums in relation to appraisals; unlawful and excessive principal and interest assessments; and an indebtedness to the appellants in the sum of $800,000.00. However, it was incumbent on the appellants to show that the interest charged was excessive, or the amounts charged for expenses etc. was excessive or that the transactions were harsh and unconscionable such that equitable relief would be given. Instead, this claim by the appellants was unsupported by any such evidence before the learned judge in the court below and the appellants failed to establish a case for the application of section 3 of the MLA.

Mr. Justice Jones, JA

Judgment delivered by the Honourable

Introduction
1

Philip and Brenda Mitchell (“the appellants”) were customers of the Finance Corporation of The Bahamas (“the respondent”). The respondent granted loan facilities to the appellants secured by various mortgages and further charges over land at Lot Number seventy-eight (78) Twynam Heights Subdivision in the Eastern district of New Providence (“mortgaged property”).

2

The appellants were in possession of the mortgaged property and were in breach of the conditions of mortgage and further charges by failing to make the loan payments. The appellants were notified of the breaches by letter on the 30th June, 2009 and told that if payment was not made of the outstanding amount of $319,164.86, legal proceedings would commence for recovery of the debt. The appellants failed to bring the loans current and refused to voluntarily vacate the mortgaged property to permit the respondent to exercise its power of sale over the mortgaged property under the terms of the Mortgage.

The Case in the Court Below
3

The respondent and the appellants appeared before Evans J, in the Supreme Court on an Originating Summons under Order 77 Rule (1)(a) and (d) of The Rules of the Supreme Court (“the RSC 1978”) on an application by the respondent seeking possession of the mortgaged property and the amounts outstanding under the mortgage. There was a cross action by the appellants against the respondent for the striking out of the respondent's Originating Summons.

4

On the 15 th April 2014 Evans J, accepted the indebtedness of the appellants and gave a judgment for the respondent ordering the appellants to pay the amounts outstanding under the mortgages and charges. He said that if the appellants failed to pay the outstanding amounts they should give vacant possession of the mortgaged property to the respondent within sixty days. Evans J, also struck out the appellants' summons to strike out the respondent's Originating Summons and gave costs in both matters to the respondent.

The Appeal
5

The appellants now appeal the decision of Evans, J. and have asked for an order to set aside the judge's decision to order vacant possession and to strike out the appellant's cross action. The appellants filed thirty-nine grounds of appeal. They are set out below:

  • (1) At paragraph one the learned judge erred in fact in holding that the Respondent's Originating Summons filed September 14th A.D. 2009, was brought pursuant to Order 77 Rule (1) (a) and (d) of the Rules of The Supreme Court (RSC).

  • (2) The learned judge erred in granting the relief sought by the respondent in failing to strike out the respondent's mortgage action in absence of a reasonable cause of action, being devoid of merit of the mandatorily required elements in Order 73 Rule 7 (a) and (d) of the RSC.

  • (3) The learned judge erred in fact and operated under such misapprehension, in granting the respondent an amount including $60,115.00, notwithstanding that such relief was not included in the Respondent's Originating Summons.

  • (4) The learned judge erred in fact in that he failed to observe undisputed prima facie evidence of real property and insurance fraud, forgery, fraudulent misrepresentation, false attestations, breaches of contracts, breaches of statutory duties, economic duress, undue influence, coercion, negligence inter alia perpetrated against the appellants by the respondent pursuant to the subject matter before the court and should have granted the appellants the strike out relief they sought pursuant to the clean hands doctrine.

  • (5) The learned judge erred in that he should have found that the respondent's mortgage action was not brought bona fide to secure or protect the mortgage property.

    ...

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