Sealy v First Caribbean International Bank (Barbados) Ltd
| Jurisdiction | Barbados |
| Judge | Simmons, C.J. |
| Judgment Date | 18 September 2009 |
| Neutral Citation | BB 2009 CA 18 |
| Docket Number | Civil Appeal No.10 of 2008 |
| Court | Court of Appeal (Barbados) |
| Date | 18 September 2009 |
Court of Appeal
Simmons, C.J.; Williams, J.A.; Mason, J.A.
Civil Appeal No.10 of 2008
Mr. V.O. Smith Q.C. and Ms. Lisa Greaves of Smith & Smith, attorneys-at-law, for the appellant.
Mrs. S. Mohammed Cumberbatch of Carrington & Sealy, attorneysat-law, for the respondent.
Damages - Breach of contract — Wrongful dishonour of cheques by the respondent bank — Trial judge failing to analyse the evidence for both parties and make proper findings — Finding on appeal that bank was liable for dishonour of the cheques — Trial judge failing to attempt a provisional quantification of damages — Defamation — Whether words “refer to drawer” on cheque were defamatory — Quantum.
This appeal raises important issues concerning the consequences of wrongful dishonour of cheques by the respondent (the bank), as well as important issues concerning pleadings in civil litigation. In the court below, Kentish, J. dismissed the action brought by the appellant (Mrs. Sealy) in which she claimed damages for breach of contract and libel. The trial judge found that “there was much dissonance between the case sought to be advanced at the trial on behalf of the plaintiff and that pleaded on the statement of claim”.
Mrs. Sealy is the office manager and accountant of the firm of attorneys-at-law known as Smith & Smith. She has been a customer of the bank since the 1970s. In June 2004 she held two accounts at the bank's Broad Street branch. These accounts were: (a) current account No. 2622503 and (b) savings account No.6261394. Mrs. Sealy's son was the other signatory to the savings account.
On 16 June 2004, Mrs. Sealy wished to renew her annual membership and that of her husband to the Barbados Cancer Society (the Cancer Society). She drew a cheque on the bank in the sum of $150 in favour of the Cancer Society. This cheque was presented to the Bank of Butterfield Ltd. for payment on 22 June 2004. It was dishonoured and returned to the Cancer Society with the notation “Refer to Drawer”. Then, on 20 June 2004, Mrs. Sealy drew another cheque. This was made payable to the company of her dentist, Cavident Ltd, in the amount of $105. It, too, was dishonoured when presented on 22 June 2004 to the Bank of Butterfield (Barbados) Limited with the notation “Refer to Drawer”.
As a result of the dishonour of the cheques, Mrs. Sealy filed an action claiming, (i) damages for breach of contract, (ii) damages for mental distress, humiliation, embarrassment and, (iii) damages (including exemplary damages) for libel.
Mrs. Sealy gave evidence that on 15 June 2004 her savings account contained $114,889.02. She went to the bank to withdraw $800.00 from her savings account. She wanted $200 in cash and she told the teller to transfer $600 from her savings account to her current account. She received $200 in cash together with a slip marked ‘current account withdrawal’ showing $600 “withdrawn amount” from her current account. The withdrawal slip was signed by Mrs. Sealy. She insisted that this slip was evidence of the transfer of the funds which she asked for from her savings account to her current account but, in terms, the slip did not so state. It showed a withdrawal amount and cash received of $600. However, she did not receive $600 shown on the withdrawal slip because this sum was posted by the Bank to Mrs. Sealy's savings account. Mrs. Sealy then gave evidence concerning the two cheques which she had drawn but which had been dishonoured. She spoke of her embarrassment when she learnt of their dishonour.
On 24 June she received a statement of her current account from the Bank and saw that it was overdrawn by $134.26 and that $600 had been debited from that account. She went to the bank the next day, 25 June 2004, and spoke with Mrs. Colleen Webster, a supervisor. She asked Mrs. Webster how was it that her account was in overdraft when, on 15 June 2004, she had asked that it be credited with $600 being a transfer from the savings account to the credit account. According to Mrs. Sealy, Mrs. Webster said that she saw where the error was. The account had been debited rather than credited. She said that Mrs. Webster got a computer print-out of her savings account and asked her to transfer $1,200 from the savings account to the current account in order to regularise it. This was done.
Mrs. Sealy then said that she asked Mrs. Webster whether any of her cheques had ‘bounced’ and she was told No. However, Mrs. Webster told her that, if any cheques were returned, she should bring them to the bank and the bank would write and apologise. Mrs. Sealy said she was reluctant to do as advised because that was the second time that the bank had “messed up” her chequing account. About 3 days after seeing Mrs. Webster, Mrs. Sealy received a letter from the Bank dated 23 June 2004 and signed by Mr. Gregory Carter, senior credit counsellor. The letter informed her that her current account was overdrawn as at 22 June 2004 in an amount of $334.26 and, since she had no overdraft facility with the bank, it reserved the right to dishonour her cheques. She was advised to deposit “a sum sufficient to regularise the position by 30 June 2004”.
After receiving Mr. Carter's letter on 27 June 2004, Mrs. Sealy telephoned the bank the next day and spoke to him. She said she told him that the letter mentioned that her account was overdrawn but she had gone into the bank on 25 June 2004 to point out that the bank had made an error. When she told Mr. Carter that she also had a savings account with money on it and he should not ‘bounce’ her cheques for such a small amount, Mr. Carter's response was that there could be more than one Grace Sealy. In fact, Mrs. Sealy's evidence was that she told Mr. Carter that there was only one Grace Sealy at “Anderson” East Point, St. Philip. Mrs. Sealy's cheques bear her home address and telephone number, so Mr. Carter's response was puzzling to say the least. Mrs. Sealy said that she told him that she hoped the bank had not bounced her cheques and he said no.
However, after this conversation, she received a call from Cavident Ltd informing her that the cheque paid to that company for $105 had also “bounced”.
Under cross-examination, Mrs. Sealy testified that on 15 June 2004 she went to the bank to carry out 3 transactions: (i) to deposit a cheque in the sum of $276; (ii) to withdraw $200 in cash from her savings account; and (iii) to transfer $600 from her savings account to her current account. She said the teller gave her 4 slips and she recalled signing 2. Mrs. Sealy was examined and cross-examined on 4 transaction slips generated by the bank. Exhibit IA was a “Current Account Withdrawal” slip, unsigned, but showing a withdrawal of $600. Exhibit 1 was a “Savings Account Deposit” slip, signed by Mrs. Sealy and recorded a “cash amount” of $600 and “total deposit” of $600. Exhibit 2 was a “Savings Account Withdrawal” slip, unsigned, but which showed a withdrawal of $200 and on which was handwritten “$114,689.82”. Exhibit 14 was a “Savings Account Deposit” slip, signed by Mrs. Sealy and recorded a deposit of $276 and the amount of $114,689.82 in someone's handwriting.
However, Mrs. Sealy said that she did not make a deposit of $600 on 15 June 2004. She said that she expected to see the $600 reflected on her current account. Instead, the current account statement for 15 June 2004 suggested that she owed the bank $134.26. Mrs. Sealy was positive that she never told the teller to transfer $600 from her current account to her savings account.
The Bank called Mrs. Webster and Mr. Caner as its witnesses. Mrs. Webster has known Mrs. Sealy since 1999 and has been a client of the firm Smith & Smith. She said that Mrs. Sealy came to see her as she realised that the transfer on 15 June was from current account to savings account and “not the other way round”. She said:
“On printing the accounts I realised that $600 was transferred from chequing to savings. That transaction had put the chequing account in an overdraft position and I also realised that two cheques had also been passed through the chequing account to put it further into overdraft.”
She said that after printing the accounts, the statement on the chequing account showed a withdrawal of $600 and, on the savings account, a deposit of $600, both done on 15 June 2004. Mrs. Sealy told her that the transactions were incorrectly recorded and Mrs. Webster therefore suggested to her to “double” the transaction by transferring $1,200 from the savings to the chequing account. She said that she considered it strange that the customer would have withdrawn $600 from her chequing account and then issue further cheques to put it further in debit.
Mrs. Webster gave an account of the usual procedure for withdrawal of funds. She said that Mrs. Sealy would have gone to the teller and stated what type of business she wished to transact. The teller enters that information into the computer. A slip is then printed in duplicate and the customer is given the duplicate for verification of the transaction. The customer verifies the information, signs the slip and returns it to the teller who then gives a copy of that slip to the customer. If there is an error, the customer points it out to the teller who then calls the supervisor to delete the transaction and the teller will thereafter enter the correct information. There was, however, no evidence before the Court that that procedure was in fact followed on 15 June 2004. The teller, whose number was on the transaction slips, was not called as a witness because, according to Mrs. Webster, she could not recall the transaction.
We note that on 23 June 2004 when Mr. Carter sent his letter the two cheques had already...
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