–ordered to pay $40,000 costs

CONSEQUENT to a legal battle between Farouk Yasin and Citizens Bank, Guyana Inc. 1998, the conclusion of a High Court judge was upheld, resulting in his appeal being dismissed. Costs agreed on were in the sum of $40, 000. Murseline Bacchus appeared for the Appellant, and Rafiq Khan for the Respondent.

According to Justice of Appeal Singh, who delivered the judgement of the Court: “Citizens Bank, the Respondent, by way of a specially endorsed writ, sued the Appellant for the sum of $17,149,505, being the balance of an amount due, owing and payable to the Respondent in August, 1998 namely the sum of $24, 749, 555 for which the Appellant executed a promissory note.
“The Appellant, in response, filed an affidavit of defence in which he deposed that there was no consideration for the loan. He contended that himself and the Respondent carried on commercial transactions as banker and importer respectively.
“The Appellant referred to a specific shipment of milk from a Dutch company, payment for which was secured by a letter of credit issued by the Respondent bank. He further deposed that the milk was shipped on December 15, 1995 instead of the original date of November 8, 1995, and upon arrival, it was found to be unfit for human consumption.
“Moreover, that he had instructed the bank to refuse payment on the letter of credit, but they did not act as instructed.
“He contended that the execution of the promissory note and mortgages in favour of the Respondent bank was procured by undue influence, unlawful coercion and or duress exerted on him. He gave no particulars.
“The Respondent bank filed an affidavit in reply and exhibited certain documents. In that affidavit, the Managing Director deposed that on August 19, 1998 a term loan of $24,749, 555 was granted to the Appellant to restructure the outstanding balances on letters of credit numbers 21/96 and 27/96 respectively, and to finance the completion of construction of the Appellant’s business premises at 54 Line Path, Corriverton, Berbice. These letters of credit marked Exhibits B1 and B2 were both drawn in favour of Bailey Dairy Products Ltd. England and not in relation to any Dutch Company as the Appellant deposed.
“The trial judge ruled that the affidavit of defence did not disclose a triable issue and judgement was awarded to the Respondent bank. It is from this decision the appeal emanated.”
According to the judgement, the grounds of appeal were that:
(i) The trial judge erred in failing to consider the affidavit in reply, the exhibits attached thereto, and the affidavit in answer to the reply which contained sufficient facts upon which the Appellant was entitled to an order for leave to defend; and
(ii) the trial judge did not consider and/or properly consider whether the documents before him satisfied the second part of the proviso to Order 12, Rule 4 (2) of the Rules of Court.
Order 12 Rule 4 (2) stipulates:
“The judge may, on any hearing under this Order, give judgement for the Plaintiff on his application, provided that if the defendant by his affidavit shall satisfy the judge that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend, the Judge shall give leave to defend.”
Continuing with the delivery of the judgement, Justice Singh said:
“Mr. Bacchus, Counsel for the Appellant, contended that the affidavit, in answer to the Respondent’s reply, disclosed sufficient facts, and had these been considered by the learned judge, the Appellant ought to have been granted leave to defend with pleadings.
“I make the observation that the affidavit in answer is numbered 1158 of 1998, a different action number from the present. There is no evidence that there was any application to correct the action number on the affidavit in answer. In the affidavit of defence, the Appellant had disclosed that he had filed action 1158 of 1998 against the Respondent. One is, therefore, left to wonder whether the affidavit in answer is part of that action, since it bears the same number.
“At Page 42 of the record, Senior Counsel Mr. B. DeSantos, in his submissions on the Appellant’s behalf, referred to a letter of credit numbered 43/95 which related to a transaction with a Dutch company. Moreover, there is no reference by Senior Counsel to the facts deposed in the affidavit in answer.
“It might have been prudent for Senior Counsel to have filed a supplementary affidavit of defence, instead of an affidavit in answer to the affidavit in reply.
“Order 12 does not make provision for the filing of such an affidavit. However, even if it is argued that the term ‘or’, used in October 12 Rule 4 (2) is disjunctive (see s. 7 of the interpretation and General Clauses Act, Cap 2:01) and that the Rule makes provision for the disclosure of facts to the Court apart from those deposed in the affidavit of defence, that contention would fail, since, in this particular case, the action number on the affidavit bears no relation to the present action.
“Neither is there any evidence of an amendment being granted. It is obvious that the reference to the transaction in relation to a shipment of milk imported from a Dutch Company in 1995 does not relate to the facts as stated in the affidavit in reply and the documents exhibited thereon.
“As regards the contention at Paragraph 10 of the affidavit of defence that the promissory note and mortgages were illegal and void, the author, Duke, in his Treatise on the Law of Immovable Property in British Guiana at Cap 14, speaking on mortgages, state the law as follows:
‘A mortgage of land is a registered deed passed by a borrower (the mortgagor) charging his land by way of security for the repayment of the Loan. A mortgage deed is, in reality, a judgement, and to use the phraseology of English law, it is a registered judgement against the land.’
“In this particular case, the mortgages executed as security for the loan, not having been set aside, still subsist.
“As to the promissory note, this Court is bound by the decision of Zephyr v.Bank of Nova Scotia [1988] 42 WIR 192, which states that there are three possible defences to such a note, namely: Fraud, duress, or for consideration which has failed.
“It is important to note that the Appellant in this matter had not provided any particulars with regard to these special defences.
“For all the reasons stated the appeal is accordingly dismissed and the conclusion by the trial judge is upheld. Costs agreed in the sum of $40, 000.00.”