St. Vincent Co-Operative Bank Ltd v Aldrick Eddison Hadaway (Also known as Eddison Hadaway)

• Jurisdiction: St Vincent and the Grenadines
• Judge: Henry, J.
• Judgment Date: 20 June 2017
• Neutral Citation: VC 2018 HC 39
• Date: 20 June 2017
• Court: High Court (Saint Vincent and the Grenadines)
• Docket Number: SVGHCV2017/0149

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Henry, J.

SVGHCV2017/0149

Between

St. Vincent Co-Operative Bank Limited

CLAIMANT

and

Aldrick Eddison Hadaway Also known as Eddison Hadaway

DEFENDANT

Appearances:

Mrs. Zhinga Horne-Edwards of counsel for the claimant.

Defendant in person, unrepresented.

Real property - Mortgage — Failure to prove defendant owned the reference property — Claim for possession and sale of property dismissed.

BACKGROUND

Henry, J.

1 St. Vincent Co-operative Bank Limited (‘the bank’) filed this claim 1 against Mr. Hadaway to recover the sum of $22,216.47 interest and an order for sale of property situated at Edinboro, Saint Vincent and the Grenadines. The bank alleged that it lent Mr. Hadaway monies which he has failed to repay.

2 Mr. Hadaway admitted the claim. Summary trial was conducted on May 16 ^th 2018. Mr. Hadaway gave no evidence. The bank relied on the testimony of its Assistant Recoveries Officer Ms. Shadia Joseph who provided particulars about the loan and Mr. Hadaway's default in repayment. Her account established that Mr. Hadaway is liable. Accordingly, judgment is entered for the bank.

ISSUES

3 The issues are:

• (1) Whether Mr. Hadaway is liable to the bank for the debt? and

• (2) To what remedies is the bank entitled?

ANALYSIS

Issue 1 — Is Mr. Hadaway liable to the bank for the debt?

4 Ms. Joseph's affidavit 2 was admitted as her evidence in chief. She was cross-examined briefly by Mr. Hadaway. Ms. Joseph gave her account in a frank and forthright manner. Mr. Hadaway did not dispute her recollection or testimony. I therefore accept it as being credible and probative of the issues in this matter.

5 Ms. Joseph averred that the bank lent Mr. Hadaway $30,000.00 on May 7 ^th 2012. Mr. Hadaway purported to secure the loan by property at Edinboro in the Parish of Saint George. Ms. Joseph said that it comprised 12,501 square feet and had a dwelling house constructed on it. She gave no details about the root of title or the documentation by which Mr. Hadaway acquired an interest in it. She explained that it is shown on plan number A10/124.

6 Mr. Hadaway executed a ‘mortgage’ deed on 7 ^th May 2012 in which he claimed to own a fee simple interest in the subject land. He purported to offer the charge over the land as a security to compel his repayment of the loan. The deed was registered as deed number 1313 of 2012 and a certified copy was tendered into evidence. It made no reference to the title document by which he became so seised. The Schedule to the Deed described the property as follows:

‘ALL THAT Lot piece or parcel of land situate at Edinboro in the Parish of St. Andrew

in this State containing (sic) by admeasuring 12,501 square feet or as the same is more particularly shown and delineated on a Plan prepared by Licensed Land Surveyor Clifford Williams and approved and lodged at the Lands and Survey Department on 20 ^th December 2007 under Number A10/124 or howsoever otherwise the same may be abutted bounded known distinguished or described Together with all buildings and erections thereon and all ways waters watercourses rights lights liberties privileges and easements thereto belonging or usually used occupied or enjoyed therewith or reputed to belong or be appurtenant thereto.’

7 The referenced plan was not produced. The bank supplied no registration number or particulars regarding how Mr. Hadaway acquired an interest in the referenced property. The deed did not assist in this regard. In the circumstances, there is insufficient evidentiary and no legal basis on which the Court may legitimately find that Mr. Hadaway was the legal or beneficial owner of the subject land at the relevant times, or whether such property exists. I make no finding that he was or is or whether such property exists.

8 Ms. Joseph deposed that Mr. Hadaway gave the bank a power of sale over the subject property under the terms of the mortgage deed. She claimed that it was exercisable in the event of Mr. Hadaway's default in repaying the loan. However, I am unable to conclude that Mr. Hadaway legally conferred to the bank such power of sale.

9 Only the owner of the referenced property or someone with a sufficient legal or beneficial interest in it, or with the requisite authority could have done so. The bank has not proved that Mr. Hadaway had such interest or authority. I therefore make no finding that he validly executed a mortgage deed which created such obligations and rights.

10 I hasten to add that I harbor no doubt that Mr. Hadaway signed the ‘mortgage’ document. In this regard, the stated commitment by him to repay the loan created a valid contract between the parties. The main undertakings were by the bank to advance the loan amount to Mr. Hadaway; and on the other hand for him to repay the principal and interest amounts. That part of the contract survived any nullity of the uncertain and potentially unenforceable portions respecting title. 3

11 I wish to make it clear that Mr. Hadaway might very well have an interest in the subject property. However, the bank failed to provide satisfactory evidence of this. In the absence of an adequate...