ISSUES
[10] Six (6) issues arise for determination in this matter:
(i)
Whether the claim is restricted to the causes of action specifically
pleaded in the claim form?
(ii) Whether the court can rely on statements of witnesses who did not
attend for cross-examination?
(iii) Whether a valid and binding agreement exists between the parties that
was breached?
(iv) Whether there was an assurance given by the 2
nd
defendant to the
claimant on which she relied and consequently acted to her detriment?
(v) Whether the defendants were unjustly enriched at the expense of the
claimant?
vi)
Whether if the claimant has no other remedy the court can construe an
informal family arrangement in respect of the claimant’s occupation of a
room in the defendants’ house?
SUBMISSIONS
[11] Counsel for the claimant submitted in summary that:
(i)
She should be taken as a witness of truth as she gave her evidence in
clear answers and did not attempt to embark upon long explanations or
irrelevances;
(ii) The evidence of Mr. Lenford Clarke was significant and was a
cornerstone of the claimant’s contention that the 2
nd
defendant gave
her the title with the intention of giving her an interest in the property.
He was an independent person with no axe to grind and he should be
accepted as a witness of truth. Further, there was no evidence led by
the defendants of a friendship between the claimant and Mr. Clarke and
there is nothing in their case which could justify such a suggestion;
(iii) The claimant called as witnesses some of the persons who actually built
the structure and supplied material for that purpose. Their evidence was
clear and they were not discredited by cross-examination. If anything, it
elicited evidence of their truthfulness. Even though the defendants did
not have a chance to cross-examine Mr. White on his witness
statement, (due to his illness at the time of trial), and the court must
be careful about the weight to be given to it, the statement of Mr.
Richard White should be accepted in its entirety as proof of the matters
stated in it as they were matters that were not really contested;
(iv) The 2
nd
defendant very seldom gave a direct answer to a question on
cross-examination and displayed the classic symptoms of a witness that
was not being truthful, by her need to give lengthy explanations in her
answers. She made profound statements in support of the claimant’s
case. She was evasive, argumentative and cantankerous in her
responses and wherever her evidence conflicted with that of the
claimant and her witnesses, it should not be relied upon. In those
instances the evidence of the claimant and her witnesses should be
preferred;
(v) No other evidence was led for the defendants. Although two of the
sons filed witness statements they were not called as witnesses nor
was there any attempt made to admit their witness statements as
hearsay. The contents of those witness statements as well as the 1
st
defendant’s witness statement cannot be referred to nor relied upon by
the court;
(vi) The court should, on a balance of probabilities, find that the claimant
spent $4,800,000.00 on the construction of the house and that the
replacement value of the building in 2008 was $8,200,000.00;
(vii) That a valid and binding contract subsisted between the claimant and
the defendants and should be enforced by the court directing that they
should complete the performance of that contract by putting the
claimant’s name on the Title and the Indenture;
(viii) If the court was of the view that it could not order the transfer of the title
and indenture as prayed, then the court should exercise its equitable
powers to prevent the defendants from unjustly and unfairly keeping the
benefit of the expenditure of the claimant’s funds without compensation
to her;
(ix) That the defendants actively encouraged the claimant to improve their
property and quality of life knowing that she was doing so in the belief
that they would permit her to occupy one room in the house and put
her name on the Title and the Indenture. In these circumstances, she
mistakenly improved the defendants’ property and they acquiesced in
this. The claimant had also suffered a detriment by expending
her
money and spending her time to improve the defendants’ asset
and
quality of life and this should be determined at the date the
defendants reneged on the assurances they gave to her. In these
circumstances, there was fraud of such a nature as will entitle the court
to restrain the possessor of the legal right from exercising it;
(x) In the instant case the claimant had performed her part of the
arrangement but there had been a total failure on the part of the
defendants. This honourable court should allow her claim in restitution.
The claimant’s improvements have clearly been beneficial to the
defendants and it would be unconscionable for the defendants to