Republic Bank (Grenada) Ltd (formerly Known as the National Commercial Bank of Grenada Ltd) Claimant v Alana Brathwaite Aisha Campbell Defendants [ECSC]
| Jurisdiction | Grenada |
| Judge | PRICE FINDLAY, J. |
| Judgment Date | 07 October 2010 |
| Judgment citation (vLex) | [2010] ECSC J1007-3 |
| Court | High Court (Grenada) |
| Docket Number | CLAIM NO. GDAHCV2007/0345 |
| Date | 07 October 2010 |
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO. GDAHCV2007/0345
CLAIM NO. GDAHCV2007/0417
Mr. Gregory Delzin, S.C. with Ms. Michelle Emmanuel Steele for the Bank
Dr. Francis Alexis, Q.C. for the Executrices
Two claims have been consolidated into this one matter before this Court.
The first claim is GDAHCV2007/0345 initiated by Republic Bank (Grenada) Limited as a mortgage claim. The Bank sought monies due and owning under a mortgage dated 8th July 2002, made between the Bank (at the time the National Commercial Bank Grenada Limited and Shirley Brathwaite, now deceased). This claim also seeks a declaration that the Bank is entitled to sell the property held under the Mortgage and Deed of Charge, court fees and costs.
The second claim is GDAHCV2007/0417 initiated by the Executrices of the late Shirley Brathwaite against the Bank for negligence, breach of contract and damages and an injunction restraining the Bank from exercising its powers of sale, and for costs.
The contract alleged is an oral contract evidenced in writing, the writing being a Banker's Order dated 4th September 2003, in which the late Shirley Brathwaite gave the Bank instructions to debit the account monthly in order to pay her life insurance premiums to CLICO.
The Bank claims the following relief:
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(a) Payment of the sum of $470,719.55 being principal and interest as at 3rd August 2007 with interest accruing on the sum of 402,564.65 at the rate of 9% per annum from 3rd August 2007 until payment being monies due and owing under the said covenant to pay contained in the Mortgage and the Deed of Further Charge.
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(b) A Declaration that the Claimant is entitled to sell under its power of sale the said lot of land with the building thereon mortgaged to it under the Mortgage and Deed of Further Charge being ALL THAT lot piece or parcel of land with the building thereon being part of a large lot known as Hygeia situate in the Parish of Saint Andrew in the State of Grenada containing by admeasurement Twenty Thousand (20,000) square feet English StatuteMeasure and abutted and bounded as the same is delineated and described in the plan or diagram thereof marked with the letter "K" and annexed to an Indenture of Conveyance made the 31st January, 1975 between Lloyd St. Louis of the first part The Grenada Building and Loan Association of the second part and the said Lloyd St. Louis of the third part and recorded in the Deeds and Land Registry of Grenada in Liber A12 at page 542
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(c) Court fees in the sum of $133.00, and
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(d) Legal practitioners fixed cost on issue in the sum of $2,000.00
The Executrices claim the following relief:
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(1) A declaration that Republic Bank (Grenada) Limited, ("the Bank"), shall within 45 days the making of this declaration account to Alana Brathwaite and Aisha Brathwaite Campbell as Executrices of the estate ("the estate") of Shirley Brathwaite, deceased, ("the deceased"), and Personal Representatives of the deceased, for the sum of $400,000.00 which would have been payable to Colonial Life Insurance Company (Trinidad) Limited, ("CLICO"), to the estate on the death of the deceased, under Life Insurance Policy No. GNH0061353, ("the Policy"), issued by CLICO to the deceased by which Policy CLICO contracted that in consideration of the premiums on the policy being paid up to date CLICO would pay the sum assured under the Policy $400,000.00, ("the sum assured"), on the death of the insured or on expiry of the Policy on 08.01.2002, had the Bank, compliantly with its obligations to the deceased, paid CLICO the premiums thereon for September and October 2005 for the deceased out of her Savings Account #61004045 with the Bank; but which the Bank did not pay, in breach of contract and negligently.
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(2) A declaration that the Bank, as assignee of the Policy, shall be deemed to have received the sum assured, following the death of the deceased.
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(3) A declaration that the estate is entitled to a set-off against the Bank regarding the sum assured, in respect of money, if any, due and owing to the Bank at the death of the deceased by the deceased under an Indenture of Mortgage dated 8 July 2002 and made between the Bank o the One part and the deceased of the Other part and recorded in the Deeds and Land Registry of Grenada in Liber 3–2005 at page 969.
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(4) An injunction restraining the Bank from exercising as against the estate, any of the powers and rights in the said Indenture of Mortgage, including particularly the power to sell the property comprised in the said Mortgage conferred thereby or otherwise on the Bank, on any basis other than that the Bank be deemed to have received the sum assured.
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(5) Damages for damage and loss suffered by the estate, caused by breach by the Bank of the said contract, including:-
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(1) Special Damages $400,000.00
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(2) General Damages.
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(6) Further or alternatively, damages for damage and loss suffered by the estate, caused by breach by the Bank of the neighbourly duty of care owed by the Bank to the deceased regarding payment of the said premiums, which premiums the Bank negligently failed to pay, the damage and loss resulting from such breach of duty of care sounding in damages including
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(1) Special Damages $400,000.00
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(2) General Damages.
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(7) Interest pursuant to section 27 of the Supreme Court Act, Cap. 336,1990 Revised Laws, Grenada, on the amount found to be due to the Claimants at such rate and for such period as the Court thinks fit.
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(8)Further or other relief.
The Bank did not call Wendy Ann Richardson to be cross-examined as she was ill and unable to attend.
The Executrices did not call Aisha Campbell as she resides in Jamaica and was unable to attend the hearing.
Neither of their witness statements was taken into account as a result of their absence.
O'Neale Dominique, the Supervisor of the Credit Unit of the Bank, gave evidence that the deceased entered into a mortgage on 8th July 2002 over the subject property at St. Andrew in Grenada. The mortgage was stamped to cover the sum of $400,000.00.
By way of a Deed of Further Charge the deceased entered into a further mortgage arrangement with the Bank. This charge was stamped to secure the sum of $12,000.00.
Both the original mortgage and the Deed of Further Charge contained covenants to repay the sums loaned and to pay interest at the end of every month.
He testified that the deceased defaulted on the payments of principal and interest due under these mortgages. He further testified that as of August 3, 2007, the deceased owed the following sums:
| Amount of advance | $450,000.00 |
| The interest payable under the Mortgage at the rate of 9.00 % per annum | |
| Amount of periodic payments required to be made $4,179.00 per month Amount or repayments that have been made | $170,414.19 |
| Amount or repayment due but unpaid as of August 3, 2007 | $470,719.55 |
| The amount remaining due under the Mortgage (Principal balance $402,564.65 Interest due $68,154.90) As of August 3,2007 | |
| The daily rate at which interest accrues | $99.26 |
The Bank, by way of formal demand letter dated 20th September 2006, wrote to the Defendants in their capacity as Executrices of the deceased's estate requesting payment on the outstanding sum due to the mortgage.
He also produced a loan activity statement, a document which detailed all the activities with respect to the loan taken out by the deceased.
In cross-examination he stated that payments were made on the loan to the sum of $170,414.19; he could not, however, say how many payments were made. The last payment on the loan was made on the 26th August 2005; that sum was $250.93.
Joycelyn Mc Sween, the Manager of Retail Services at the Bank, also gave evidence, having held that position since 2002. She headed the department which administered the loan facility the deceased had with the Bank.
She testified that Dr. Bert Brathwaite and the Defendants came to the Bank on 13th June 2006, this was just the first meeting she had with them as she had been on leave and away from the office during the deceased's illness and eventual death.
At that meeting the Brathwaites were upset that the Bank had not paid the insurance premiums.
This insurance policy was a life insurance policy which the deceased had taken out with CLICO and which she had assigned to the bank as a further security for the mortgage loan. The policy was in the sum of $400,000.00.
The premiums were not paid to CLICO for a period of two months. As a result the policy lapsed, and at the death of the deceased the company refused to pay the sum of the policy, that is, $400,000.00.
She stated that Dr. Brathwaite said that he had gone to the Insurance Company and made a payment and that he thought the payment would cover the year. He could not find the receipt nor could he remember how the payment had been made, or to whom he had spoken [dealt with].
She said that the Brathwaites continued to blame the bank. She told them that Mrs. Brathwaite became ill and her salary stopped coming to the Bank.
She asked what responsibility were the Brathwaites willing to take. She got no response. Dr. Brathwaite claimed that he Bank refused to give him information.
The Brathwaites requested that the Bank waive the mortgage payments until the CLICO situation was sorted out. She indicated that the Bank would grant them some time to obtain a...
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