45. In Church of England Building Society v Piskor and Others [1956] it was found that “the transfer must have been executed at a time earlier than the charge to the building society, so that there was a time at which it would be correct to say that the mortgagor had become the estate owner, i.e., the legal owner of the fee simple of the property which was subsequently by him charged to the building society to secure the amount of his loan”. SIR RAYMOND EVERSHED MR. 46. It is clear from the foregoing that it was only after he had established his peaceful inhabitation of the property that D had undisputed possession of the equitable estate, subject to the void mortgage contract for the repayment of a debt that has never been substantiated with anything more than the hearsay, notwithstanding many requests for full disclosure of the instruments and documents relating to the alleged loan of money by C. Indeed, since C failed to execute a valid mortgage contract, the Bank could conceivably take the position that it is not contractually obliged to do so. 47. It is a self evident truth that no Man can promise to another that which is not in his ownership. Grammar, Logic and the Common Sense dictate that this is so. Ipso facto, the purported ‘mortgage’ is void. 48. The Companies Acts 1985 & 2006 “CA 2006 44 Execution of documents. (1) Under the law of England and Wales or Northern Ireland a document is executed by a company--(a) by the affixing of its common seal, or (b) by signature in accordance with the following provisions. (2) A document is validly executed by a company if it is signed on behalf of the company-- (a) by two authorised signatories, or (b) by a director of the company in the presence of a witness who attests the signature. (4) A document signed in accordance with subsection (2) and expressed in whatever words, to be executed by the company, has the same effect as if executed under the common seal of the company.” 49. Given the absence of any signature and/or seal on any document (see Exhibits 1,2,3 and 5), it is clear that there has been no execution by D. This applies to the void Deed (Exhibit 2) which emphatically fails to comply with the requirements of section 44 of the Companies Act 2006, which replaced section 36C of the Companies Act 1985. The legal effect of the statutes is that documents and deeds must be signed on behalf of the company by a director in the presence of a witness, or by two authorised signatories. 50. Without adherence to these provisions no purported mortgage contracts can be considered duly executed by a company and its terms are therefore legally unenforceable, as was clearly implied when the Court of Appeal endorsed the view of Lewison J in the case of Williams -v- Redcard Ltd [2011]: “For a document to be executed by a company, it must either bear the company’s seal, or it must comply with s.44 (4) (section 36C of the Companies Act 1985) in order to take effect as if it had been executed under seal. Subsection (4) requires that the document must not only be made on behalf of the company by complying with one of the two alternative requirements for signature in s.44 (2)…” 51. If a purported mortgage contract has not been validly executed in accordance with section 44 of the 2006 Act, such documents cannot be considered legally enforceable, pursuant to Williams -v- Redcard Ltd, 52. It is indisputable that neither of these requirements has been met by C. The alleged mortgage contract therefore must be considered void ab initio, along with the charge that purportedly arose out of it. Charges granted under invalid contracts are incapable of operating as deeds for mortgages 53. In Re MOLTON FINANCE LTD. [No. 001609 of 1965] - [1968] Ch. 325, Denning MR gave a characteristically clear and succinct description of the implied contract within a charge over land, 21 years prior to the changes brought into being by the 1989 Act: “It seems to me that when an equitable mortgage or charge is created by deposit of title deeds, there is an implied contract that the mortgagee or chargee may retain the deeds until he is paid. This implied contract is part and parcel of the equitable mortgage or charge. It is not a separate legal or common law lien. It has no independent existence apart from the equitable mortgage or charge. When the mortgage or charge is avoided for non-registration, then everything which is ancillary to it is avoided also.” 54. It is also worth noting that an equitable mortgage naturally arises from every legal mortgage, as per Westdeutsche v. Islington BC [1996] A.C. 669, [1996] 2 All E.R. 961 House of Lords (3-2) in which Lord Browne-Wilkinson expressed the principle that the equitable title has no existence prior to the separation of the legal and equitable estates, which is achieved through the creation of a legal mortgage. Whilst full title is vested in the mortgagee upon proper registration of such, the mortgagor is allowed to retain beneficial ownership of the property concerned under the mortgagee’s covenant not to issue a demand for full repayment of monies lent, provided the mortgagor performs its obligations under the terms of a contract for a secured loan. 55. The effects of section 2 of the 1989 Act were the creation of the unequivocal obligation to express the previously implied terms of the contract inherent to all charges deposited as title deeds, naturally requiring that the documents be in writing and signed by both the mortgagor and the mortgagee, as well as incorporating all of the applicable terms and conditions in a single document, in contracts that are not exchanged, pursuant to the judgment of Lightman J in Murray v Guinness [1998]: “In my view s.2 of the Act imposes requirements for the validity of contractual obligations of the character there specified: the document in which any such contractual obligation is contained must be in the form specified in s.2 if the contractual obligation is to have legal effect. […] Cases may arise where the invalidating effect of s.2 of the Act on the contractual obligations in a document have so fundamental an effect on the contract or transaction as a whole that the other provisions in the document cannot sensibly or fairly be allowed to stand on their own.” 56. It therefore naturally follows that the effect of non-compliance with requirements of section 2 and section 44 of the Companies Act 2006 (section 36C of the Companies Act 1985) is that the formal requirements for the registration of the purported legal charges under the protection of the Land Registry have not been met for the want of due process and as a result the charge may be defeated as a minor interest by the subsequent disposition of a prevailing interest over the registered estate by D. 57. This position is sustained by Fisher and Lightwoods Law of Mortgage 13th Ed: “... 5.6 The creation of a legal mortgage by way of a charge is a registrable disposition (1. Land Registration Act 2002, s 27(2) f.). In order for the charge to confer a legal estate upon the chargee, the charge must be registered with the chargee being entered as proprietor of the charge in the Charges Register of the chargor’s title (2. Land Registration Act 2002, ss 27(1), 59(2), Sch 2, para . Until registration the chargee has an equitable charge only over the registered estate (3. Mortgage Corpn Ltd v Nationwide Credit Corpn Ltd [1994] Ch 49), and 58. “As the chargee’s rights take effect only in equity until completion of the registration requirements, the charge is liable to be ‘defeated’ by a subsequent disposition of the registered estate over which the charge is made (4. If, as is likely to be the case, the chargee is not in occupation of the registered estate over which the charge has been made, the equitable charge will need to be protected by entry of a unilateral notice (as to which see the Land Registration Act 2002, ss 35 and 36). Under the Land Registration Act 1925, s 106, it was expressly stated that unless and until the mortgagee becomes a registered chargee:- (a) it shall take effect in equity, and (b) it shall be capable of being overridden as a minor interest unless it is protected as provided by sub-section (3) […]. The position under the Land Registration Act 1925, s.106 is reflected in the Land Registration Act 2002, s.27(1) which provides that ‘if a disposition of a registered estate … is required to be compared by registration, it does not operate at law until the relevant registration requirements are met.’).” 59. Since the registration of a charge naturally requires that the statutory obligations of the parties to a mortgage have been satisfied, otherwise known as due process of law, the absence of a valid contract nullifies the legal effect of the registration of the charge, which may still exist in equity unless it is successfully challenged or removed from the register, but is incapable of operating at law without a valid mortgage contract, which plainly occurred as a direct result of C’s gross negligence and/or misrepresentation of the facts, whether fraudulent or otherwise. 60. The extent of these alleged offences may well prove tantamount to fraud on a scale previously unprecedented in this jurisdiction, but in any event it could only be fairly deduced that C is incapable of sustaining a defence that it committed such acts without being fully aware that it was committing them, for its own gain and to the disadvantage of the consumers of its mortgage products, by facilitating the registration of illegal charges that it can have no excuse for not knowing were executed in breach of the mortgagee’s statutory obligations, many of which have been successfully relied upon by C in its applications for possession orders and warrants of eviction, when it is an established principle of equity that no valid cause of action can arise from an unlawful deed. 61. Without limitation, D relies on the following authorities in support of these points. In Khan and others v Rehman and others - [2007] All ER (D) 343 (Mar), Judge Hodge QC discussed the consequences of the improperly executed legal charges that were intended to operate as deeds: “My finding of fact that Talibs signatures on the legal charges of No 114 and No 75 and the transfer of No 75 was not properly witnessed means that those documents cannot take effect as deeds: see section 1 (3) of the Law of Property (Miscellaneous Provisions) Act 1989… Although, because they were not deeds, the charges of No 114 and No 75 could not take effect as legal charges, in my judgment they operated both as acknowledgments of the underlying indebtedness and as valid equitable charges. In the case of No 114, the register of title should be rectified, but only to the limited extent of showing the charge as an equitable, rather than a legal, charge. In the case of No 75, the charge has already been discharged. So far as the transfer of No 75 is concerned, because it was not a deed, it was not capable of passing the legal estate in No 75: see section 52 (1) of the Law of Property Act 1925.” 62. In Chitty on Contracts (29th Ed) it is explained that, if, on the true construction of a statute “the contract be rendered illegal, it can make no difference, in point of law, whether the statute which makes it so has in mind the protection of the revenue or any other object. The sole question is whether the statute means to prohibit the contract. If, on the other hand the object of the statute is the protection of the public from possible injury or fraud, or is the promotion of some object of public policy the inference is that contracts made in contravention of its provisions are prohibited. (para 16-146). If these principles were applied in this instance, the point taken would be that it is prohibited under statute to create a mortgage without a valid contract for the disposition of such an interest over land. 63. In Heald v OConnor [1971] 2 All ER 1105, [1971] 1 WLR 497, Fisher J held, in relation to a security given in breach of s 54 of the Companies Act 1948 (the statutory predecessor of s 151 of the 1985 Act), that “…the statute renders illegal any security or purported security given in breach of that section” (p 502 F-G) and “…the debenture in the present case is prohibited by statute and for that reason illegal” (p 506B-C) (see also, to similar effect, Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 2 All ER 1073, [1968] 1 WLR 1555 at 1659F per Ungoed-Thomas J). 64. Therefore, under schedule 4, sections 5 and 6 of the Land Registration Act 2002, the entry of the charge in the register must be removed and the register corrected by the Registrar at the earliest opportunity, on the grounds that (i) C’s lack of proper care and/or false representation resulted in a superfluous entry, which it is in both the D’s and the public interest to strike from the register and (ii) D was the victim of an UNLAWFUL EVICTION on 12th August 2014 for the reason that no valid cause of action arises from fraud: “ 7. - 5. When the contract is fraudulent, it is void, for fraud vitiates everything. 1 Fonbl. Equity, 66, note Newl. on Contr. 352; and article Fraud,” 65. Thus, in accord with the following, the Court is invited to find that the register be corrected immediately ~ under the Land Registration Act 2002, “5 The registrar may alter the register for the purpose of— (a) correcting a mistake, (b) bringing the register up to date, (c) giving effect to any estate, right or interest excepted from the effect of registration, or (d) removing a superfluous entry. 6(1) This paragraph applies to the power under paragraph 5, so far as relating to rectification.(2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor’s consent in relation to land in his possession unless—(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or (b) it would for any other reason be unjust for the alteration not to be made.” The Void Order 66. A void order does not have to be obeyed because, for example, in Crane v Director of Public Prosecutions [1921], it was stated that if an order is void ab initio (from the beginning) then there is no real order of the court. 67. A void order results from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1). A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494). 68. In Peacock v Bell and Kendal [1667] 85 E.R. 81, pp.87:88 it was held that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly stated. 69. It is important to note therefore that in the case of orders of courts with unlimited jurisdiction, an order can never be void unless the ‘unlimited jurisdiction’ is ‘limited’ in situations where it is expressly shown to be so. However, where the court’s unlimited jurisdiction is shown to be limited (for example: a restriction on the court’s power by an Act of Parliament or Civil or Criminal Procedure Rule) (Peacock v Bell and Kendal [1667]; Halsbury’s Laws of England) then the doctrine of nullity will apply. 70. Similarly, if the higher court’s order is founded on a lower court’s void act or invalid claim then the higher court’s decision will also be void (Lord Denning in MacFoy v United Africa Co. Ltd. [1961] 3 All ER). A person affected by both a void or voidable order has the right – ex debito justitiae – to have the order set aside (which means that the court does not have discretion to refuse to set aside the order or to go into the merits of the case) (Lord Greene in Craig v Kanssen [1943]). In said case, Lord Denning confirmed that:- (i) a void order is automatically void without more ado; (ii) a void order does not have to be set aside by a Court to render it void although for convenience it may sometimes be necessary to have the Court set the void order aside; (iii) a void order is incurably void and all proceedings based on the void order/invalid claim are also void. (iv) Even a decision of the higher courts (High Court, Court of Appeal and Supreme Court) will be void if the decision is founded on an invalid claim or void act, because something cannot be founded on nothing. 71. The procedure for setting aside a void order is by application to the court which made the void order, although it can also be set aside by appeal although an appeal is not necessary (Lord Greene in Craig v Kanssen [1943]) or it can quashed or declared invalid by Judicial Review (where available) and where damages may also be claimed. 72. Although an appeal is not necessary to set aside a void order, if permission to appeal is requested and if out of time the court should grant permission because time does not run because the order is void and the person affected by it has the right to have it set aside (Lord Greene in Craig v Kanssen [1943]). 73. A void order is void ~ (i) even if it results in a failure of natural justice or injustice to an innocent third party (Lord Denning in Wiseman v Wiseman [1953] 1 All ER 601). (ii) It is never too late to raise the issue of nullity and a person can ignore the void order or claim and raise it as a defence when necessary (Wandsworth London Borough Council v. Winder [1985] A.C. 461; Smurthwaite v Hannay [1894] A.C. 494; Upjohn LJ in Re Pritchard (deceased) [1963]; Lord Denning in MacFoy v United Africa Co. Ltd. [1961]). 74. Therefore, in the light of the foregoing: (i) an application to have a void order set aside can be made to the court which made the void order; (ii) the setting aside must be done under the court’s inherent power to set aside its own void order; (iii) the court does not have discretion to refuse the application because the person affected by the void order has a right to have it set aside; (iv) an appeal is not necessary because the order is already void; (v) if permission to appeal is sought and if sought out of time permission should be given because as the order is void time does not run; it is never too late to raise the issue of nullity and the person affected by the void order has a right to have it set aside; (vi) a void order can be quashed or declared unlawful by Judicial Review where available and where damages may also be claimed; (vii) the whole proceeding is void if it was based on a void act; (viii) a void order does not have to be obeyed because it has no legal effect from the beginning; (ix) as it is never too late to raise the issue of nullity a person can ignore the void order and rely on nullity as a defence when necessary; (x) a void order is void even if the nullity is unjust or injustice occurs to an innocent third party; (xi) an order of a court of unlimited jurisdiction is only void if it can be expressly be shown that the unlimited jurisdiction is limited in that situation, or the order is founded on an invalid claim or void act; (xii) no court (not even the Supreme Court) has jurisdiction to give effect to a void act and the duty of the court is only to interpret and apply the law not to reform or create it as such power rests only with Parliament. 75. Given the fatal error of the judge in failing to correctly inspect the evidence put before the court was compounded by his failure to apply the statutory law of mortgages correctly and that the failure of the Court under CPR 26.3(1) to issue an allocation questionnaire is a denial of due process which amounts to a fundamental defect in proceedings thereby further VOIDING said proceedings and breaching Constitutional Law, the Order issued must be considered void ab initio for the want of due process. Therefore, D has the incontrovertible right to have it set aside ex- debito justitiae and the Defence and Counter Claim of 25 August 2009 must be reinstated granting summary judgment to D, on the basis that there is no sustainable claim for C in the absence of a valid and enforceable mortgage contract, with all costs being restored to D that were wrongly paid to C under the terms of the void order of 26 August 2009. 76. D requests that this application is filed and the orders applied for are issued without delay. Conclusion 77. In Bellinger v Bellinger [2003] UKHL 21 the House of Lords confirmed that a void act is void from the outset and no Court – not even the House of Lords (now the Supreme Court) – has jurisdiction to give legal effect to a void act no matter how unreasonable that may seem, because doing so would mean reforming the law which no Court has power to do because such power rests only with Parliament. The duty of the Court is to interpret and apply the law not reform or create it. 78. It is important to note that if a claim is invalid the plaintiff can start all over again unless he is prevented from doing so due to limitation as in the case of Re Pritchard (deceased) [1963] or estoppel – for example; where the Claimant applied to the Court for permission to correct/amend the claim and permission was refused; or the plaintiff or his solicitor had been negligent in ignoring a material fact when filing the invalid claim, so that the plaintiff is estopped by the principle that he should not be allowed a ‘second bite at the cherry’. 79. Given the well-established absence of the Bank’s signature and/or company seal on ANY document purporting to create an alleged contract, it is self evident that the order issued by the court is VOID ab initio for the want of due process, on the basis that the judgment is founded upon a fundamental misapplication of the law. 80. The procedure for setting aside a void order is by application to the Court which made the void order, although it can also be set aside by appeal although an appeal is not necessary (Lord Greene in Craig v Kanssen [1943]) or it can quashed or declared invalid by Judicial Review (where available) and where damages may also be claimed. As said void mortgage purported to be a legal mortgage, it was irrefutably subject to statutory provisions and its very creation and legitimacy was necessarily grounded in said requirements. Therefore, in the absence of a lawful bi-lateral contract - as required by s. 2 of the LPMP Act 1989, the purported mortgage is void ab initio. 81. The cited failures to follow statutory provision render the mortgage illegal as per Chitty on Contracts (29th Ed) the following is stated (citations omitted): ‘If, on the true construction of the statute, “the contract be rendered illegal, it can make no difference, in point of law, whether the statute which makes it so has in mind the protection of the revenue or any other object. The sole question is whether the statute means to prohibit the contract. If, on the other hand the object of the statute is the protection of the public from possible injury or fraud, or is the promotion of some object of public policy the inference is that contracts made in contravention of its provisions are prohibited. (para 16-146)” 82. The mortgage is nullity under Common Law and the ‘security’ allegedly held by C is void - a nullity, which is amply supported by ~ Re Hill & Tyler Ltd (in administration); Harlow and another v Loveday and another: [67] In Heald v OConnor [1971] 2 All ER 1105, [1971] 1 WLR 497, Fisher J held, in relation to a security given in breach of s 54 of the Companies Act 1948 (the statutory predecessor of s 151 of the 1985 Act), that “the statute renders illegal any security or purported security given in breach of that section” (p 502 F-G) and “the debenture in the present case is prohibited by statute and for that reason illegal” (p 506B-C) (see also, to similar effect, Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 2 All ER 1073, [1968] 1 WLR 1555 at 1659F per Ungoed-Thomas J. In Carney v Herbert [1985] 1 AC 301 mortgages entered into in breach of the equivalent provision in the Australian Companies Act 1961 were considered by the Privy Council to have been “illegal and of no effect” and “illegal and void” (at p 309). 83. Given the above, the Court is invited to further take note that as D was never under any obligation to perform on said VOID ‘MORTGAGE’, the subsequent void Order for possession and the consequent Warrant for Eviction were all nullities, albeit ones which precipitated him the gravest of losses - namely, his unalienable right and custom under the ancient laws of these lands to the peaceful inhabitation of his freehold known as ‘Sovereign Place’, 3 Wilson Avenue, OSSETT, Wakefield WF5 0HQ West Yorkshire. 84. Wherefore, by way of recompense and in the name of truth and justice, the claimant invites the court to make two orders pursuant to the following: 85.. Given that the claimant has not provided the court or the defendant with any evidence that proves there is an enforceable mortgage in existence, in the absence of which, the application for possession must necessarily fail, under the provisions ~ without limitation ~ of the LPMP Act 1989, Unfair Terms in Consumer Contracts Regulations 1999, the Land Registration Act 2002 and the Companies Act 1985 (2006); along with the restoration of all costs wrongly paid to C pursuant to the void order, an order for disclosure and a retrial in the High Court. The Orders Order of Restitution 86 That (i) the 14th July 2014 order of DDJ Usurper be set aside, on the basis that it is void ab initio for the want of due process of law, along with all subsequent orders and, (ii) summary judgment given in favour of D, on the ground that C has failed to provide the court with any evidence that proves there is a valid mortgage contract with which to support C’s applications, which must necessarily be struck out as disclosing no reasonable grounds in such circumstances, and (iii) That all costs paid in error to C be restored within 14 days, with costs being awarded to D on an indemnity basis. (iv) That, given C and his solicitors, sgh martineau have been negligent in ignoring the statutory requirements of the LPMP Act 1989 when filing the invalid claim, C is denied permission to appeal and/or reinstatement of its claim, by the principle that C should not be allowed a ‘second bite at the cherry’ following such a void and unconscionable action. Order of Rectification 87. That given D’s overriding interest and the charge arose out of an invalid mortgage contract which is of no legal effect (void ab initio), the land register should be corrected as soon as possible, in accord with s.27(1) LRA & s.51(1) LRA (Apr 2002) and, the Court issue an order that the register be rectified to show D as the registered and bona fide proprietor of the Land and bona fide holder of a 1st charge over the Land (with address ‘Sovereign Place’ , 3 Wilson Avenue, OSSETT, Wakefield [WF5 0HQ]. In Bellinger v Bellinger [2003] UKHL 21 the House of Lords confirmed that a void act is void from the outset and no Court – not even the House of Lords (now the Supreme Court) – has jurisdiction to give legal effect to a void act no matter how unreasonable that may seem, because doing so would mean reforming the law which no Court has power to do because such power rests only with Parliament. The duty of the Court is to interpret and apply the law not reform or create it. 88. It is important to note that if a claim is invalid the plaintiff can start all over again unless he is prevented from doing so due to limitation as in the case of Re Pritchard (deceased) [1963] or estoppel – for example; where the Claimant applied to the Court for permission to correct/amend the claim and permission was refused; or the plaintiff or his solicitor had been negligent in ignoring a material fact when filing the invalid claim, so that the plaintiff is estopped by the principle that he should not be allowed a ‘second bite at the cherry’. 89. Given the well-established absence of the Bank’s signature and/or company seal on ANY document purporting to create an alleged contract, it is self evident that the order issued by the court is VOID ab initio for the want of due process, on the basis that the judgment is founded upon a fundamental misapplication of the law. 90. The procedure for setting aside a void order is by application to the Court which made the void order, although it can also be set aside by appeal although an appeal is not necessary (Lord Greene in Craig v Kanssen [1943]) or it can quashed or declared invalid by Judicial Review (where available) and where damages may also be claimed. Statement of Truth ~ it is my belief that the facts stated in this document are true. By:…………………………………….. Duly Authorised Representative to the Defendant, The Man™ Dated: 9th November 2014
Posted on: Fri, 28 Nov 2014 12:14:34 +0000
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