Archer v Haynes

• Jurisdiction: Barbados
• Judge: Hanschell, J.,Williams J.
• Judgment Date: 28 July 1972
• Court: Divisional Court (Barbados)
• Docket Number: No. 37 of 1972
• Date: 28 July 1972

Divisional Court

Hanschell, J.; Williams J.

No. 37 of 1972

Archer

and

Haynes

Appearances:

E. Alleyne for the appellant.

H. Moseley for the respondent.

Real Property - Foreclosure

Facts: The plaintiff appealed from a decision of the magistrate in which he gave judgement for the defendant — The plaintiff claimed the land on which the defendant lived — The plaintiff had executed a mortgage of the land to secure a debt — Foreclosure proceedings were instituted when the debt was not repaid within the prescribed time — The plaintiff served a notice to quit on the defendant alleging that the defendant was her tenant — On the true facts the defendant had been living on the land for 26 years — The issue was whether the magistrate was correct in finding that a bona fide claim had been raised and that he had no jurisdiction to determine the matter

Held: That the decision of the magistrate was correct.

JUDGMENT OF THE COURT:

1 This is a matter which has caused us great concern. It illustrates what can happen when the process of the court is used in an irresponsible or unscrupulous manner. The result can be scandalous.

2 The facts are these. Mary Archer, the appellant, lives in Holetown, St. James. Gweneth Haynes, the respondent, is her neighbour. The appellant claims the land on which the respondent lives. She goes to her solicitor. He employs the all too familiar device for the purpose of having the land put up for sale by the court. The advertisement for liens is inserted in the Official Gazette and the Advocate News. No claims are put in and eventually the appellant acquires a title to the land from the Registrar.

3 The result is that the appellant now has documents of title to the land and it appears that a gross fraud may have been perpetrated on the respondent. For according to the record it does not seem that any attempt was made to give her any specific notice of the proceedings which the appellant had instituted. She would hardly have read the Official Gazette and the notice in the Advocate News may not have come to her attention.

4 But that is not all. Having used the fiction of a foreclosure suit to procure a documentary title to the land in the possession of her neighbour, she then proceeded to serve on the respondent a notice to quit and on the latter's failure to do so, she lodged a complaint alleging that the respondent was a tenant of hers, that she had served on her due notice to quit,...