Lijyasu M Kandekore v COK Sodality Cooperative Credit Union Ltd and Others
| Jurisdiction | Jamaica |
| Judge | Phillips JA,McDonald-Bishop JA,F Williams JA |
| Judgment Date | 06 May 2016 |
| Neutral Citation | JM 2016 CA 40 |
| Docket Number | CIVIL APPEAL NOS 88/2014 & 43/2015 |
| Court | Court of Appeal (Jamaica) |
| Date | 06 May 2016 |
[2016] JMCA Civ 23
JAMAICA
IN THE COURT OF APPEAL
SUPREME COURT
The Hon Miss Justice Phillips JA
The Hon Mrs Justice McDonald-Bishop JA
The Hon Mr Justice F Williams JA (AG)
CIVIL APPEAL NOS 88/2014 & 43/2015
and
and
Consolidated with
and
and
Lijyasu M Kandekore in person
Mrs Georgia Gibson-Henlin , QC and Miss Coleasia Edmondson instructed by Henlin Gibson Henlin for the respondents
In this consolidated appeal, the appellant sought to challenge the decision of Fraser J who, inter alia , refused to grant an order for the return of his motor vehicle pending a determination of the claim and he also sought to challenge the orders of Batts J which, inter alia , granted summary judgment in the respondents' favour. We heard this matter on 7 and 8 March 2016 and on 18 March 2016, we made the following orders:
‘The consolidated appeal in respect of SCCA No 88/2014 and SCCA No 43/2015 is dismissed as follows:
1) Appeal No 88/2014 from the judgment of Fraser J dated 10 October 2014 is dismissed.
2) The judgment of Fraser J is affirmed.
3) Appeal No 43/2015 from the judgment of Batts J dated 17 April 2015 is dismissed.
4) Summary judgment granted by Batts J in favour of the respondents is affirmed.
5) Costs of both proceedings in the court below and in respect of this consolidated appeal are awarded to the respondents to be taxed if not agreed.
6) The court refrains from making any order on the counter notice of appeal dated 1 October 2015 filed in respect of Appeal No 43/2015.’
We promised to give our reasons for that decision and this judgment is a fulfilment of that promise.
The facts stated herein are gleaned from the appellant's particulars of claim filed 9 September 2014; his affidavit filed 19 September 2014 in support of his application for interim relief and that filed 10 April 2014 in opposition to the respondents' application for summary judgment. Facts have also been derived from the affidavits of Roshene Betton, legal counsel of the 1 st respondent, filed 7 October 2014 and Deidre Daley, the 2 nd respondent and asset management clerk of the debt management unit in the 1 st respondent organisation, filed 10 October 2014.
The appellant is an attorney-at-law and a member of the 1 st respondent which is a duly registered credit union. The 2 nd respondent and 3 rd respondent (a bailiff employed with the 1 st respondent) were at all material times, acting as the servants and/or agents of the 1 st respondent.
On 19 June 2013, the appellant obtained a loan of $750,000.00 from the 1 st respondent at an interest rate of 22% per annum for a period of 36 months. While the respondents contend that the appellant's monthly payment was $31,507.12 comprising of loan payment of $28,642.84 and share contribution of $2,864.28, the appellant insists that his monthly payment was $28,642.84. The appellant's 2004 Toyota Corolla motor vehicle licensed FA 7979 had been used as security for the loan. The title for the said motor vehicle was surrendered to the 1 st respondent and the 1 st respondent also held his shares in the sum of $75,000.00. In order to obtain the loan, the appellant signed an offer letter and a loan agreement, provided a bill of sale to the 1 st respondent and gave the 1 st respondent power of attorney in respect of the said motor vehicle. These documents were relevant in deciding a number of contested issues in both appeals.
Aspects of the offer letter signed by the appellant are as follows:
‘Our Ref: DJR/5203708
June 19, 2013
Mr. Lijyasu Kandekore 29 Norbrook Drive Apartment 2D KINGSTON 8
Dear Mr. Kandekore
Re: Proposed COK Sodality Loan Facility —
$750,000.00
We are pleased to make you, the borrower/member, this Offer of Finance of the project as outlined in your application to us. The basic terms and conditions of our offer are set out below and shall apply should our offer be accepted:
1. AMOUNT OF LOAN FACILITY
The Sum of Seven Hundred and Fifty Thousand Dollars ($750,000.00) broken down as follows:
Previous Loan Amount Nil
Current Loan Amount $750,000.00
The loan shall be repaid in Jamaican Dollars.
2. PURPOSE OF THE LOAN
To be used as capital for business.
3. RATE AND PAYMENT OF INTEREST
An interest rate of Twenty Two percent (22%) per annum calculated on the reducing balance is applicable. The interest rate is variable at the discretion of COK Sodality Co-operative Credit Union Limited and payable monthly on ‘payment dates’ with the first payment becoming due one month after the date of first disbursement and monthly thereafter.
4. PAYMENT OF PRINCIPAL
Principal to be paid in monthly instalments, the first payment to be made one (1) month after the date of first disbursement and monthly thereafter.
5. SHARES CONTRIBUTION
It is hereby agreed and understood that you will make a further 10% of total monthly payment (principal & interest) will be made by you per month to shares (referred to as Share-Contribution).
6. MONTHLY PAYMENTS AND LOAN TERM
The sum of $31,507.12 per month for Thirty Six months as follows:
Loan & Interest Payment $28,642.84 Share Contribution $ 2,864.28
Other NIL
• Where the Member/Borrower fails to make their monthly payments as set out at Items 3, 4 and 6 hereof the COK Sodality may at its sole discretion deduct such payment from the member's Shares. If, however, the member/borrower fails to payback the amount so deducted from Shares within 10 days, their account will for all intent and purposes considered to be in arrears as set out in Item 8 hereof.
7. SHARE REQUIREMENT
The member/borrower is required to meets [sic] the share requirement of the loan prior to disbursement. This amount equates to $75,000.00
8. DEFAULT INTEREST CHARGES
• Should the monthly payment of Loan and Interest as set out in Clause 6 above fall in arrears for two or more months (consecutive or combined) the member/borrow [sic] will pay a fee of 2% per month on the total arrears beginning the second month and each month thereafter until all such arrears have been paid,
• On demand to pay to COK Sodality all costs charges and expenses incurred or to be incurred by COK Sodality from time to time in relation to these presents or any default there under or the enforcement or protection of any rights to COK Sodality under these presents. Attorney's fees to be on an indemnity basis.
9. DOCUMENTATION FEE
A fee of $10,200.00 plus G.C.T, refundable at COK Sodality's sole discretion, is payable on upon execution of collateral security and prior to the disbursement of loans funds herein as follows, [sic]
Registration $5,000.00
Credit check $3,000.00
Inspection Fee $1,000.00
Other $1,200.00
…
12. SECURITY
a) Loan Agreement in form prescribed by C.O.K.
b) Shares in the sum of $75,000.00
c) Promissory Note from the Borrower in the amount of $750,000.00
d) Bill of Sale on 2004 Toyota Corolla Chassis #MR053ZEC107052282 and Engine # 3ZZ4311681.
13. CONDITIONS PRECEDENT TO DISBURSEMENT
The obligation of COK Sodality to make the loan available to the member/borrower shall be subject to the following:
e) Signing and returning of this Offer Letter;
f) Execution of such documents as shall be required by COK's Legal Counsel having due regard to the collateral security requirements herein before mentioned;
g) Permanent Shares of that will remain
intact with the Credit Union until all amounts due and payable hereunder have been satisfied and your COK Sodality's account being closed.
In acceptance of our Offer of Finance, please sign the copy letter enclosed at the place indicated. Then return to us within fourteen (14) days of the date hereof together with the sum of Twenty Thousand Six Hundred and Twenty Five Dollars ($20,625.00) plus G.C.T. (16.5%) payable by cash or Managers Cheque. This being fees referred to in Clauses 10 & 11 hereof. Failure to do so will be deemed non-acceptance of our offer.
Notwithstanding the acceptance of the Offer herein, should you fail to satisfy all the conditions precedent to disbursement in accordance with Clauses [sic] 14 hereof within fourteen days (14) of the date of acceptance hereof or should COK Sodality become aware of any material factor which in its sole opinion mitigates against its making the loan COK Sodality reserves the right at its sole discretion to cancel the facility herein.
Yours co-operatively
COK SODALITY CO-OPERATIVE CREDIT UNION LIMITED
Signed
Morris Livingston BRANCH MANAGER
ACCEPTED BY:
Signed ON THE 19 DAY OF JUNE 2013
MEMBER BORROWER
Signed ON THE 19 DAY OF JUNE 2013
Witnessed By:’
The appellant also signed a loan agreement aspects of which are as follows:
‘LOAN AGREEMENT
THIS INSTRUMENT is made on the 19 th day of June 2013 BETWEEN the party setout at Item 1 of the Schedule hereto (hereinafter referred to as “the Borrower”) which expression where the context so admits shall include his/her Heirs and Personal Representatives of the ONE PART, the party setout at Item 2 of the Schedule hereto (hereinafter referred to as “the Guarantor”) which expression where the context so admits shall include his/her Heirs and Personal Representatives of the SECOND PART and COK SODALITY CO-OPERATIVE CREDIT UNION LTD a Co-operative Society duly incorporated under the Co-operative Society's Act of Jamaica with Registered Office at 66 Slipe Road, Kingston 5 in the parish of...
To continue reading
Request your trial
-
Lloyd Kerr (T/A Empire Supermarket) v Christene Myers
... ... of Lords in Hadmor Productions Ltd and others v Hamilton and others [1982] 1 All ER 1042 ... matter of the consolidated appeals of Lijyasu M Kandekore v COK Sodality Co-Operative Credit ... ...
-
Devon Mark Davis v Karen Marajah
... ... Similarly, in the case of Lijyasu M Kandekore v COK Sodality Co-Operative Credit ... ...