Sagicor Bank Jamaica Ltd (formerly known as RBC Royal Bank (Jamaica) Ltd formerly known as RBTT Bank Jamaica Ltd) v Marvalyn Taylor-Wright
| Jurisdiction | Jamaica |
| Judge | Sinclair-Haynes JA,F Williams JA,McDonald-Bishop JA |
| Judgment Date | 20 December 2016 |
| Neutral Citation | JM 2016 CA 115,[2016] JMCA App 34 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 31/2014 |
| Court | Court of Appeal (Jamaica) |
| Date | 20 December 2016 |
[2016] JMCA App 34
JAMAICA
IN THE COURT OF APPEAL
The Hon Mrs Justice Mcdonald-Bishop JA
The Hon Mrs Justice Sinclair-Haynes JA
The Hon Mr Justice F Williams JA
McDonald-Bishop JA
SUPREME COURT CIVIL APPEAL NO 31/2014
MOTION NO 11/2016
Mrs Sandra Minott-Phillips QC and Ms Rachel McLarty instructed by Myers, Fletcher & Gordon for the applicant
Ransford Braham QC and Anwar Wright instructed by Taylor-Wright & Co for the respondent
This is a notice of motion brought by Sagicor Bank Jamaica Limited (“the bank”) for conditional leave to appeal to Her Majesty in Council from the decision and order of the court, delivered on 1 July 2016, in favour of the respondent.
The motion is brought pursuant to section 3 of the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962, and section 110(2)(a) of the Constitution of Jamaica (“the Constitution”). The bank has submitted two grounds in support of the motion. They are as follows:
“1. The question involved in the appeal is a decision in a civil proceeding that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council.
2. Section 110(2)(a) of the Constitution of Jamaica provides that an appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court of Appeal where, in its opinion, the question involved in the appeal falls within ground 1 above.”
The notice of motion is supported by affidavits of Andrew Foreman, sworn to on 15 July 2016, and of Rachel McLarty, sworn to on 10 and 18 October 2016.
The respondent strongly opposes the motion, and relies on her affidavit sworn to on 21 July 2016. She contends that the proposed appeal to Her Majesty in Council entails no question of great general or public importance or otherwise, and the motion should therefore be refused.
The primary issue which arises on this application, therefore, is whether the criterion of “great general or public importance or otherwise” has been established by the bank, for conditional leave to be granted for an appeal to Her Majesty in Council.
The claim brought by the bank against the respondent in the Supreme Court has its genesis in an agreement between the bank and the respondent entered into in or around July 2007, by which the bank loaned to the respondent the sum of $21,760,000.00 with interest. The bank contended that in pursuance of the agreement, the respondent had signed a promissory note on 27 July 2007 (“the 27 July promissory note”) which was witnessed by one, Roosevelt Gillett-Chambers, manager at the Duke Street branch of the bank.
The respondent, in her amended defence, admitted to having signed a promissory note for a loan in the sum of $21,760,000.00 plus interest from the bank, but contends that it was done on 20 July 2007 (“the 20 July promissory note”) and not on 27 July as contended by the bank. She further asserted that the 20 July promissory note was witnessed by Mr Wilton South of the Mandeville branch of the bank. She also stated that in addition to the 20 July promissory note, she signed an offer letter as well as provided residential property, situated at 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.
The respondent's contention therefore was that she had not signed, issued or delivered to the bank the 27 July promissory note on which it was relying to enforce the loan agreement. She alleged that that promissory note was forged. She also contended that she owes no liability under the 20 July promissory note since it was incomplete as it did not contain any agreed interest rate and that the loan had been disbursed on 27 July 2007, which was not contemporaneous with the date of the signing of the 20 July promissory note on. In effect, the respondent denied the validity of the two promissory notes as proper bases on which the bank could enforce the loan agreement.
On 8 March 2011, the bank commenced proceedings against the respondent to recover the money allegedly owed on the loan plus interest, amounting to $31,662,395.26, as well as for money owed on credit cards with interest, fees, costs and expenses to the date of payment. The respondent subsequently paid all claims except for the money the bank alleged was owed on the loan.
On 8 May 2012, the bank filed a notice of application for summary judgment with respect to the unpaid loan by the respondent, for the sum of $31,650,395.26. The basis of the application for summary judgment was that the respondent had no real prospect of successfully defending the claim, she having admitted to borrowing monies from the bank as well as executing a genuine promissory note (the 20 July promissory note) in favour of the bank in the sum of $21,760,000.00 plus interest.
The application was heard and granted by Sykes J, who, in applying the principles set out in Swain v Hillman [2001] 2 ALL ER 91 and ED&F Man Liquid Products Ltd v Patel & Anr [2003] EWCA Civ 472, found that the promissory note was not essential to the bank's claim for payment. He stated:
“So I am not making any pronouncement now as to whether or not there was forgery, or no forgery, because that is not my function here. But let us go on the favourable assumption to the [respondent] that there was some kind of forgery or some kind of irregularity. In the circumstances of this case, as pleaded by both parties, and as the contest has developed, the documentation in relation to which the dispute has arisen, namely the promissory note exhibited by the bank, is not an essential part of the bank's claim or, put another way, the bank can still establish its claim without that document. And, in light of the fact that there is really no denial that the loan was made, and there is no assertion by the [respondent] that all the monies have been paid back, what you have now is a problem of arithmetic.”
The respondent appealed against that decision. The appeal was allowed and the matter was remitted to the Supreme Court to be heard by a different judge. Phillips JA, with whom the other members of the court agreed, dealt exhaustively with the grounds of appeal and, at paragraphs [78] and [79] of the judgment, she provided a useful synopsis of the court's overall conclusion in disposing of the appeal in these terms:
“[78] Without hearing all the evidence and on the pleadings as existed, it is evident that the learned judge's approach in granting an order for summary judgment and his assessment of the respondent's prospects of success was palpably wrong.
[79] The issues surrounding whether the appellant signed the 27 July promissory note and whether it was forged or was ratified require investigation and cannot be a basis for summary judgment. The learned judge placed reliance on documents outside the respondent's particulars of claim and reply without regard to the applicable law on bills of exchange and without an amendment to the particulars of claim. In those circumstances, the learned judge was wrong in the exercise of his discretion to grant summary judgment and so it ought to be set aside with costs to the [respondent]. The issues which arise on the disputed facts in this case must be subject to a trial.”
By way of reminder, the relevant provision of the Constitution, which is engaged in the consideration of this motion, is section 110(2)(a), which provides:
“(2) An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court of Appeal in the following cases —
(a) where in the opinion of the Court of Appeal the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council, decisions in any civil proceedings;…”
The bank's contention that conditional leave should be granted rests on the two planks provided for in the section: Firstly, that the question to be asked of Her Majesty in Council is of great general or public importance and, secondly, that the phrase “or otherwise” in the section is used disjunctively, so that, leave may be granted in situations where the decision ought “otherwise” to be submitted to Her Majesty in Council, particularly, in situations where the overriding objective of the Civil Procedure Rules 2002 (“the CPR”) makes it necessary for conditional leave to be granted.
The affidavit of Andrew Foreman succinctly sets out the issues identified by the bank as being of great general or public importance or otherwise, for conditional leave to be granted. The relevant portions from paragraphs 7–12 read:
“7. By its Notice of Motion Sagicor seeks leave to appeal the decision of the Court of Appeal to [H]er Majesty in Council pursuant to sections 110(2)(a) of the Constitution of Jamaica and in accordance with section 3 of the Jamaica (Procedure in Appeals to Privy Council) Order in Council, 1962.
8. Sagicor is advised by its attorneys-at-law on Record and verily believes that its proposed appeal raises an issue of great general or public importance to a commercial bank's ability to effectively engage in banking business namely, that commercial banks must be allowed to utilize the legal procedure of summary judgment to recover from delinquent debtors overdue, acknowledged and undisputed borrowings.
9. The orderly functioning of the commercial banking sector in any market economy is regarded by Sagicor as being of critical general and public importance and the...
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