Mark Wignall | Bank handed US$2.5m judgment for undervaluing property

On December 3, 2020, a judgment totalling over US$2.5 million was handed down against JMMB Merchant Bank by Justice Palmer-Hamilton in the Supreme Court.

The claimant was Bruce James and the contentious issue that took the matter to court was breaching the ‘under powers of sale’ clause – selling a property at a grossly undervalued price. The claim no. 2016CD00309. Bruce James vs JMMB Merchant Bank. The property in question is located in one of the top-notch housing developments in Jamaica. Spring Farms, Rose Hall, Montego Bay. Main house: 10 bedrooms, eight bathrooms, two swimming pools, and a three-car garage. Guest cottage: two bedrooms, two bathrooms, etc; building square footage – 23,000 sq ft; present building costs – US$150 to US$200/sq. feet. According to the claimant, the property in question was valued for as much as US$4 million. As was evidenced by the supporting valuation reports, it was sold by the bank for only US$760,000.

It was also claimed by the claimant that for three years prior to the sale, only one advertisement/attempt to sell the property was made. This evidence was brought out plainly in court. However in 2015, the bank offered and signed an agreement with only one realtor to sell the property for US$800,000.

A few weeks after that agreement, the property was sold for US$760,000. At all times it was the intention of the claimant that if required protocols were adhered to in terms of satisfying a fair market value, the bank would have recovered what the requirements of the ‘under powers of sale’ agreement, and the claimant would also be satisfied with some recovery if matters were handled differently.

When the bank’s witness was asked, under cross examination, to substantiate how the asking price of US$800,000 and the selling price of US$760,000 were arrived at, an answer could not be provided.

The claimant, not knowing that the property had already been sold, filed an affidavit in April 2015 to secure a current valuation before any sale could be made. The claimant was told that the bank had an offer it was contemplating. It turned out that a valuation had never been done.

In her judgment, Justice Palmer-Hamilton cited several similar cases, which had been presided over by other justices, and she used their rulings as summary statements.

SUMMARY OF JUDGMENT

1. Judgment for the claimant in the sum of US$2,240,000.00 from the 28th day of September to the 3rd day of December 2020 plus interest at a rate of three per cent per annum until judgment is satisfied.

2. The claimant shall not be charged interest to his account after the 19th day of March 2015. Cost awarded to the claimant to be taxed if not agreed.

3. Counsel are to prepare draft and file the draft order to give effect to the findings and reasons of this judgment and reasons for this judgment along with any consequential orders.

The bank has appealed the judgment on the grounds that the judge ‘erred in law’ in all of her rulings. The bank is asking the court to set aside all of her rulings, grant judgment in their favour, and charge the claimant with cost. I have been following this case for sometime now. One question I am forced to ask is, how many cases similar to this one are pending before the courts and how many people simply bow to those who they believe are just too powerful to fight?

LIMITS TO WHAT COMMISSIONER CAN DO

Last Tuesday, I listened to the radio interview of Major General Antony Anderson, commissioner of police. I suspect that the commissioner is well liked by Jamaicans. After all, like the prime minister and our finance minister, he is good looking, and although it sounds simplistic, good-looking public people tend to ‘connect’ better than those not so lucky.

If we applied that same honesty, we would know that his impressive words would not be worth as much as one hill of beans in a backyard garden in slowing down the next wave of shooting deaths in Jamaica, especially after the rash of murders last weekend.

To be kind to the Jamaica Defence Force officer, he must have known that at the moment he became top cop in the Jamaica Constabulary Force, failure would become his constant companion. Failure in this case meant his inability to stem the tide of violent crime in Jamaica.

The veterans in the police force expected him to fail. Those with two or three years service expected him to fail, and the governmental administration expected him to hold on to the post of instant and inevitable failure until another lamb to the slaughter was identified. If the past is prologue, history was just seated there awaiting wave after wave of shooting deaths to overwhelm him and announce his powerlessness.

It’s a game that this country has been playing for a long time, and it hinders every new commissioner of police from asking himself what new value he could reasonably add to the Force to place alongside all the other commissioners who came before him.

For now, our top cop for the moment would best serve himself and the country by doing some simple things. The mundane but important. Get some police stations fixed, commissioner. Constantly replenish the rolling stock of vehicles and needed equipment. Ensure that there is a working kettle in the kitchenette to make tea or coffee. That would be a great morale booster. He can also try to stem the high rate of attrition of new recruits.

As for actually driving fear into potential criminals by the speedy clear-up rate of murders and efficient detective work, that is best left for the next commissioner, who will face the same passage of burnout that is probably gripping commissioner Anderson right now.

In time, every top cop in Jamaica becomes a very expensive can to kick down the road to soothe a nation badly aching for solutions in fighting violent crime.

- Mark Wignall is a political and public-affairs analyst. Email feedback to columns@gleanerjm.com and mawigsr@gmail.com.