Caribbean Commercial Bank (Anguilla) Ltd v Tosh Sharnii Carty Bin-Nassir

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Moise, J.
• Judgment Date: 28 March 2025
• Judgment citation (vLex): [2025] ECSC J0328-2
• Year: 2025
• Docket Number: CLAIM NO. AXAHCV 2024/0074

Between:

Caribbean Commercial Bank (Anguilla) Ltd.

Claimant/Respondent

and

Tosh Sharnii Carty Bin-Nassir

Defendant/Applicant

[2025] ECSC J0328-2

Before:

His Lordship, The Honourable Justice Ermin Moise

CLAIM NO. AXAHCV 2024/0074

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Mrs. Jacinth Jeffers of counsel for the Claimant/Respondent.

Defendant/Applicant self-represented.

DECISION

Moise, J.

1 This is the court's ruling on a preliminary point raised by way of application of the Defendant. The narrow question is whether the Limitation Act 1 applies to the statutory power of sale contained in the Registered Land Act (RLA) 2 in Anguilla. I have determined that the Limitation Act does not apply. These are the reasons for my decision.

The Facts

2 The Claimant, Caribbean Commercial Bank (Anguilla) Ltd. (CCB) is a commercial bank in receivership. The Defendant Tosh Sharni Carty—Bin Nassir (Mr. Bin Nassir) is the owner of a parcel of land registered in the Land Registry of Anguilla as South Central Block 38511B Parcel 90. In 2007

and 2009, respectively, the parties entered into a loan agreement which was secured by way of mortgage as a charge registered against Mr. Bin Nassir's property. It is not disputed that Mr. Bin Nassir has defaulted on this loan. CCB seeks to have the property sold by auction. Notice was provided to Mr. Bin Nassir of this intention on 11 ^th November, 2024

3 It is alleged, however, that Mr. Bin Nassir is interfering with this process and failing to provide access to the property. CCB has commenced litigation to direct that Mr. Bin Nassir provides the necessary access to the property in order to move forward with the auction. Mr. Bin Nassir has argued that the debt is statute barred in accordance with the Limitation Act and therefore prevents CCB from proceeding with the sale. He has therefore filed an application for the claim against him to be struck out.

4 There is, however, a dispute of fact, in that CCB argues that the last payment and acknowledgement of the debt was in 2016 and 2017 respectively. If this fact turns out to be accepted by the court, then the limitation of 12 years would not have expired in any event. I have therefore dismissed Mr. Bin Nassir's application on that point alone, as this dispute of fact is a trial issue. However, it is perhaps important to rule on the question of the applicability of the Limitation Act to the statutory power of sale under the RLA in general as this is an issue which has arisen in litigation more recently.

The Limitation Act

5 Although Mr. Bin Nassir was persistent in referring to section 18 of the Limitation Act in his submissions, it is clear that the section he relies on is section 17. This section states as follows:

• (1) No action shall be brought to recover any principal sum of money secured by a mortgage or other charge on property, whether real or personal, or to recover proceeds of the sale of land, after the expiration of 12 years from the date when the right to receive the money accrued .

• (2) No foreclosure action in respect of mortgaged personal property shall be brought after the expiration of 12 years from the date on which the right to foreclose accrued but if, after that date the mortgagee was in possession of the mortgaged property, the right to foreclose on the property that was in his possession is not, for the purposes of this subsection, deemed to have accrued until the date on which his possession discontinued .

• (3) The right to receive any principal sum of money secured by a mortgage or other charge and the right to foreclose on the property subject to the mortgage or charge is not deemed to accrue so long as that property comprises any future interest or any life insurance policy that has not matured or been determined .

• (4) Nothing in this section shall apply to a foreclosure action in respect of mortgaged land, but the provisions of this Act relating to actions to recover land shall apply to such an action .

6 The first observation to be made here is that it is quite clear in subsection (4) that these provisions of section 17 do not apply to foreclosures of mortgaged land. In any event, subsection (1) refers to actions to recover principal sums secured by mortgage. It is stated in the interpretation section of the Act that action includes any proceeding in a court of law. As I will examine later on, there is no requirement to commence proceedings in court to invoke the statutory power of sale in the RLA. Subsection (2) of section 17 does not refer to foreclosure of land, but rather “personal property” and is therefore not applicable to the present proceedings. The limitation as outlined in section 17 is therefore of no relevance to the statutory power of sale being exercised by CCB.

7 However, at the hearing of the matter I asked counsel for CCB to consider whether the provisions of section 5 of the Limitation Act may apply. This was because of the express wording of section 17(4) which states that [n]othing in this section shall apply to a foreclosure action in respect of mortgaged land, but the provisions of this Act relating to actions to recover land shall apply to such an action. Section 5(3) of the Act states as follows:

No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person but, if the right of action first accrued to the Crown or a spiritual or eleemosynary corporation sole through whom the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Crown or the corporation sole, or of 12 years from the date on which the right of action accrued to some person other than the Crown or the corporation sole, whichever period first expires .

8 It is important to also note the provisions of section 1(5) of the Limitation Act which states that “A reference in this Act to a right of action to recover land shall include a reference to a right to enter into possession of the land or, in the case of rent charges, to distrain for arrears of rent, and a reference to the bringing of such an action shall include a reference to the making of such an entry or distress.” This is relevant insofar as it relates to the various methods of enforcement of a mortgage debt and is an issue to which I will return later on in this decision.

The Registered Land Act (RLA)

9 Insofar as it relates to the statutory power of sale the relevant provisions of the RLA are sections 72 and 75. Section 72 states as follows:

• (1) If default is made in payment of the principal sum or of any interest or any other periodic payment or of any part thereof, or in the performance or observance of any agreement expressed or implied in any charge, and continues for 1 month, the chargee may serve on the chargor notice in writing to pay the money owing or to perform and observe the agreement, as the case may be .

• (2) If the chargor does not comply, within 3 months of the date of service, with a notice served on him under subsection (1), the chargee may—

  (a) appoint a receiver of the income of the charged property; or

  (b) sell the charged property;

  but a chargee who has appointed a receiver may not exercise the power of sale unless the charger fails to comply, within 3 months of the date of service, with a further notice served on him under that subsection .

10 Subsections 1 and 2 of section 72 outline the statutory power of sale and the circumstances under which it may be exercised. It is clear from the sections that no court action is required in order to proceed with the sale of property...