Marvalyn Taylor-Wright v Sagicor Bank Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: Dukharan JA,Phillips JA,Sinclair-Haynes JA
• Judgment Date: 01 July 2016
• Neutral Citation: JM 2016 CA 71,[2016] JMCA Civ 38
• Docket Number: CIVIL APPEAL NO 31/2014
• Court: Court of Appeal (Jamaica)
• Date: 01 July 2016

[2016] JMCA Civ 38

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Sin Clair-Haynes JA (AG)

CIVIL APPEAL NO 31/2014

Between

Marvalyn Taylor-Wright

Appellant

and

Sagicor Bank Jamaica Limited (formerly known as RBC Royal Bank (Jamaica) Limited, formerly known as RBTT Bank Jamaica Limited)

Respondent

Ransford Braham QC and Anwar Wright instructed by Taylor-Wright & Co for the appellant

Mrs Sandra Minott-Phillips QC and Miss René Gayle instructed by Myers, Fletcher & Gordon for the respondent

Dukharan JA

1 I have read, in draft, the judgment of my sister Phillips JA and I agree with her reasoning and conclusion. I have nothing further to add.

Phillips JA

2 This appeal sought to challenge an order made by Sykes J on 14 April 2014, awarding summary judgment on a claim filed by the respondent against the appellant for money it claimed that she owed on a loan. This claim was based on a promissory note which the appellant contended was forged. The appellant had applied to set aside that judgment on the basis that, inter alia , the learned judge failed to consider the fact that she had no liability to the respondent on a forged promissory note and the learned judge erred in considering documents that were not pleaded in the respondent's particulars of claim.

Factual background

3 The appellant is an attorney-at-law and customer of the respondent. The respondent is a company duly incorporated in Jamaica and operates as a bank. It was formerly known as ‘RBC Royal Bank (Jamaica) Limited’, prior to that as ‘RBTT Bank Jamaica Limited’, before its name was changed on 26 June 2014 to ‘Sagicor Bank Jamaica Limited’.

4 On 27 July 2007, the appellant borrowed the sum of $21,760,000.00 from the respondent with interest. In pursuance of this arrangement, it was the respondent's contention that the appellant signed a promissory note dated 27 July 2007 (the 27 July promissory note). The appellant denied this, but admitted that she signed a promissory note on 20 July 2007 (the 20 July promissory note); she signed an offer letter; and provided residential property situated at Lot 4 Wireless Station Road, Stony Hill in the parish of Saint Andrew and commercial property situated at Duke Street in the parish of Kingston as security for the money advanced to her with the respondent being a 2 ^nd mortgagee. The respondent alleged that the appellant made fairly regular payments towards the loan between July 2007 and June 2008, but subsequent payments were sporadic with the last payment being made on 31 December 2009.

The claim

5 On 8 March 2011, the respondent filed a claim against the appellant for money owed on the loan with interest in the sum of $31,662,395.26 and money owed on credit cards with interest, fees, costs and expenses to the date of payment. The appellant subsequently paid the sums owed on the credit cards, but a dispute remained as to the money the respondent alleged was owed on the loan. The respondent also filed a particulars of claim on 8 March 2011. Paragraphs 3, 4, 5, 6 and 7 of the particulars of claim provide that:

• ‘3. By Promissory Note dated July 27, 2007 the [appellant], for valued [sic] received unconditionally promised to pay the [respondent] upon demand the sum of $21,760,000.00 together with interest thereon at a variable rate of .25% below the [respondent's] Prime Rate of interest as declared by the [respondent] from time to time payable monthly, both before and after demand or payment and judgment, with interest calculated on a daily basis based on a 360-day year and accruing from the date hereof until payment (hereinafter referred to as “the demand loan”). A copy of the Promissory Note is attached as “A”.

• 4. The Promissory Note further provided as follows:

  • (i) Interest shall vary automatically on the day that the Prime Rate is varied by the [respondent] and without the requirement for individual notice by the [respondent] to the [appellant].

  • (ii) The [respondent's] prime rate of interest at the date the Promissory note was made was 19.75% per annum.

• 5. The [appellant] made fairly regular payments towards the loan in the period July 2007 to June 2008. Subsequent payments were sporadic with the last being made to the account on December 31, 2009 as shown below.

  Demand Loan No. MG0821335217

  	Principal	Interest
  Principal balance as at July 21, 2007	21,760,000.00
  Interest accrued from 28/07/2007 to 31/12/2009		10,212,536.80
  Less payments to principal 29/09/2007 to 31/12/2009	1,423,121.04
  Less payments to interest 31/07/2007 to 30/11/2008		3,998,207.71
  Balances outstanding as at 31/12/2009	20,336,878.96	6,214,329.09

• 6. The [appellant] has failed and/or refused to further service the loan and the amount outstanding as at March 7, 2011, inclusive of interest, is detailed as follows: —

  Demand Loan No. MG0821335217

  Principal	20,336,878.96
  Outstanding interest b/fwd from 31/12/2009	6,214,329.09
  Interest from 01/01/2010 to 07/03/2011	4,747,813.86
  Total amount due and on 07/03/2011	$31,299,021.93

• 7. Interest continues to accrue on the principal balance of $20,336,878.96 from the 8 ^th day of March 2011 at the per diem rate of $11,015.81 being 19.50% per annum.’

6 The 27 July promissory note being relied on by the respondent is stated in its entirety as follows:

‘Mandeville — 0045830000076

Individual

PROMISSORY NOTE

(Time or Demand)

TO: RBTT BANK JAMAICA LIMITED

DATE: July 27. 2007

AMOUNT: $21,760,000.00

On DEMAND AFTER DATE for value received the undersigned unconditionally PROMISES to PAY to RBTT BANK JAMAICA LIMITED or order (hereinafter, including any holder hereof, called “the Holder”) at 17 Dominica Drive, Kingston 5 or such other place as the Holder may designate the sum of TWENTY ONE MILLION, SEVEN HUNDRED AND SIXTY THOUSAND Dollars ($21,760,000.0) [sic] together with interest thereon at a variable rate per annum of POINT TWO FIVE percentage (.25%) points BELOW [signature] the Holder's Prime Rate of interest as declared by the Holder from time to time, payable monthly, both before and after demand of payment and judgement [sic], with interest calculated on a daily basis based on a 360 — day year accruing from the date hereof until payment.

Unpaid interest shall be compounded at monthly rests [sic] at the same rate applicable in respect of principal at the relevant time.

The rate of interest hereunder shall vary automatically on the day that the Prime Rate is varied by the Holder and without the requirement of individual notice by the Holder to any party hereto.

The Holder's Prime Rate as at the date hereof is understood to be NINETEEN POINT SEVEN FIVE —- percent (19.75%) per annum.

The undersigned hereby waives presentment, demand, protest and notice of any kind in the enforcement of this Note.

The term ‘undersigned’ means the persons executing this Note and where there are more than one each of them shall be jointly and severally liable to the Holder.

This Note shall be governed by and construed in accordance with the Laws of Jamaica.

Signature: [signed]

Name: MARVALYN TAYLOR-WRIGHT

Address: LOT 4, WIRELESS STATION ROAD

STONY HILL, ST. ANDREW

Witness: [signed]

ROOSEVELT GILLETT-CHAMBERS’

7 The appellant replied to this claim by filing a defence on 29 April 2011, which was amended on 3 April 2012, and further amended on 18 May 2012. Paragraphs 2, 3, 4, 5, 6 and 15 of the further amended defence states that:

• ‘2. The [appellant] categorically denies paragraphs 3 to 7 of the Particulars of Claim and say that she did not sign issue nor deliver to the [respondent] the instrument purporting to be a promissory note, which is referred to, relied on in and attached to the Particulars of Claim.

• 3. The [appellant] says further that the said instrument is fraudulent and/or a forgery and accordingly she is not liable on the said instrument as alleged or at all.

PARTICULARS OF FRAUD AND/OR FORGERY

• (i) Making and inserting a representation of the [appellant's] signature after the word ‘below’ in the body of the instrument at line 7 thereof, so as to cause it to appear to be that of the [appellant's].

• (ii) Making and affixing a representation of the [appellant's] signature at the end/foot of the instrument so as to cause it to appear to be her signature.

• (iii) Falsely representing that the [appellant] made her signature on the document in the presence of Mr. Roosevelt Gillett Chambers who was the attesting witness.

• (iv) Falsely representing that the promissory note relied on in the Particulars of Claim is the [appellant's] document and that same was issued to the [respondent] by her.

• 4. The [appellant] will say that at all material times the alleged witness to the promissory note, Mr. Roosevelt Gillett Chambers was the manager of the [respondent's] Duke Street branch and while she has spoken to him on the phone and communicated to him in writing concerning an unrelated personal matter, she has never met him nor seen him in her life.

• 5. The [appellant] will say that in July of 2007 she borrowed the sum of $21,760,000.00 from the [respondent] and made payments thereon. If, which is not admitted, the sum claimed is owed by her, the [appellant] says that she has provided to the [respondent] collateral to secure the said loan in the form of prime real estate valued at approximately six times the sum claimed.

• 6. The [appellant] will say further that the [respondent] thereafter formalized second mortgages bearing numbers 1490190 and 1490187 and registered same on the said prime real estate: being land contained in Duplicate Certificates of Title registered at Volume 1159 and...