Appeal Court sets aside Justice Chang’s order in $ 22.5 M mortgage case from 1996

– Justices say adjournments were given without reasons

The Appeal Court of Guyana has overturned a March, 2013 decision of former acting Chief Justice Ian Chang, who had ruled in favour of three persons who claimed that a buyer of a vessel paid no installments out of a $22,500,000 mortgage agreement.
The decision was handed down by acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, and Appellate Court Justices Rafiq Khan and Dr. Arif Bulkan last month.
The Appellant, who was the defendant in the previous High Court matter, was Richard Simpson, and he was represented by attorney Subedar Hassain.
Meanwhile, attorney Sase Gunraj represented the respondents, the late Abdool Yaseen, and family members Abdool Naeem Yassen and Halima Bibi Yassen. They were the plaintiffs when the case was heard at the High Court. According to court documents, Justice Chang had dismissed the Yassen’s claim but restored it on June 8, 2009.
The matter is dated 22 years ago when the Yaseens outlined that on April 10, 1996, before the Registrar of Deeds, Simpson willingly condemned in judgment, two immovable properties he owned in favour of the respondents for the Yassens to secure the $ 22.5 million payment for MV Uffee boat. The Yassens filed their

court case 20 days later on April 30, 1996.
In his defence, Simpson claimed that he never received any money from the Yassens and that he did not mortgage any property to them and that Abdool Yassen was an unregistered money lender. In fact, Simpson stated that the mortgage was “illegal and void” as he was “deceived” by the family into signing a hire purchase agreement.
The matter came up for trial, 16 years after it was filed, on May 16, 2012, before Justice Chang; and by that time the senior Yaseen had already passed away. The son, Abdool Naeem, told the court then that he did not know that Simpson had made any payments to his father. However, Stephen Thomas who was Director of Martime Safety has testified before the court that the MV Uffee was first registered in Yasseen’s name and Simpson’s afterwards. During High Court proceedings, it was also heard by Principal Clerk of Georgetown Magistrate’s Court, Mohamed Bacchus, that none of the respondents was a licensed money lender.
Justice Chang’s ruling
In Justice Chang’s March 1, 2013 determination, he ruled in favour of the Yassens and held that the case was a sale of credit of the vessel rather than a moneylending transaction. He declared that Simpson would pay interest on the $22,500,000 sum at a rate 6% per annum starting from April 30, 1996 to when he handed down his ruling. Justice Chang found that Simpson “covenanted” to pay the full mortgage sum in 48 monthly installments of $468,750 from March 1, 1996.
“[Simpson] paid no installment in accordance with the above covenant since it was

denied that he was ever indebted to [the Yassens,” Justice Chang had ruled.

Appeal
However, Simpson through his attorney mounted an appeal, noting that the former acting Chief Justice’s ruling was a breach of natural justice since the trial was held in the appellant’s absence and that the court had no jurisdiction to dismiss the respondents claim and restore it on June 8, 2009. Justices Cummings-Edwards, Rafiq Khan and Dr. Arif Bulkan cited a number of issues with Justice Chang’s ruling, with several references to case law.
Among the concerns of the Appellate judges was that Simpson never appeared in person to testify, and that “nowhere in the mortgage deed it was stated that the $ 22.5 million sum was for a loan transaction.” Additionally, the senior judges found Justice Chang granted adjournments without giving reasons. The judges said that it would not permit assertions by Simpson’s attorney, Hussain, that Justice Change was fraudulent.
“…baseless allegations such as the one made by counsel for the appellant serve no other purpose that to besmirch the integrity of the trial court,” the Appellate Court opined.
The court also held that Abdool Naeem gave conflicting evidence when he said he did not know whether Simpson paid any money to his father and then when he later said that Simpson never paid any money to them. His evidence was deemed not credible or reliable. The judges pointed out that the respondents did not discharge the legal burden of proof at the time they commenced proceedings on the grounds to enforce the mortgage. As such, the judges allowed the appeal and set aside’s Justice Chang’s decision. No court costs were awarded when the July 10, 2018 decision was handed down.