Microsoft Word White V Mullings et al [2017] jmsc 111
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- Bu səhifədəki naviqasiya:
- Evidence Act
- [26] In The Modern Law of Evidence
- [28] In Keith Garvey v Ricardo Richards
[17] It is a fact that in the instant case a specific claim for breach of contract was not
contained in the claim form, nor was such a claim particularised in the particulars of claim. What was pleaded in the claim form was the claim for the sum of
$4,800,000.00 for work done in construction of the house by the claimant, pursuant to a verbal agreement. She further pleaded in her particulars that she
provided financial assistance to construct the house in reliance on an agreement, understanding and an undertaking that her name would be recorded on the title. [18] The general parameters of her claim were therefore set out in her pleadings
which established the essence of the claimant’s statement of case — that there was a verbal agreement between the parties which was breached. The details of
the alleged agreement and its breach were outlined in the witness statements in support of her case. Those statements also made it pellucid that the
claimant’s contentions were that, i) she had expended significant sums of money to her detriment, ii) the defendants had obtained a benefit thereby and
accordingly, iii) she was entitled to the appropriate equitable remedy. [19] In these circumstances the defendants cannot successfully contend that there
were insufficient pleadings. The documents when taken together support a claim for proprietary estoppel and/or unjust enrichment and/or breach of contract. The
claims the defendants had to meet were obvious when the pleadings and the witness statements filed on behalf of the claimant were read together.
st defendant and two of the defendants’ sons filed witness statements they were not called as
witnesses, nor was there any attempt to have their witness statements admitted as hearsay under the Evidence Act. As such, the contents of those
witness statements could not be referred to, nor relied upon by the court. [21] Part 29.8(1) of the Civil Procedure Rules provides that: Where a party - (a) has served a witness statement or summary; and (b) wishes to rely on the evidence of the witness who made the statement, that party must call the witness to give evidence unless the court orders otherwise or it puts the statement in as hearsay evidence.
witness statement as hearsay evidence, where there is an intention to rely on a witness statement as evidence, the maker must attend court to give
evidence. Otherwise the witness’ statement cannot be admitted into evidence nor can it be relied upon. The following persons provided witness statements
but did not attend and give evidence at trial: Emanuel Dixon, Richard White, Cyril Mullings Sr., Cyril Mullings Jr. and Winston Mullings. [23] Except in respect of the witness statement of Richard White, there were no
applications made to admit the other witness statements as hearsay evidence nor was any other court order sought. Therefore, the witness
statements of Emanuel Dixon, Cyril Mullings Sr., Cyril Mullings Jr. and Winston Mullings have been disregarded by this court. [24] The witness statement of Mr. Richard White was admitted as hearsay evidence
pursuant to s. 31E(1)of the Evidence Act which provides that: Subject to section 31G In any civil proceedings, a statement made, whether orally or in a document or otherwise, by any person (whether called as a witness in those proceedings or not) shall subject to this section, be admissible as evidence of any facts stated therein of which direct oral evidence by him would be admissible.
get an opportunity to cross-examine Mr. White and the court must be careful about the weight to be given to his statement, it should be accepted in its entirety
as proof of the matters stated in it, as they were matters about which there was really no contest. [26] In The Modern Law of Evidence by Adrian Keane, 7 th Ed., p. 29 it is stated that “The weight of evidence is its cogency or probative worth in relation to the facts in issue”. In the case of hearsay evidence, the assessment of its weight depends
on all the circumstances from which inferences can reasonably be drawn as to the accuracy or otherwise of the out-of-court statements. The importance of
cross-examination as a vital tool for exposing weaknesses in and assessing the cogency of evidence is axiomatic. Therefore, in determining the weight, if any,
to be accorded to the statement of Mr. Richard White, the fact that his evidence was untested by cross-examination, will be a central consideration. I SSUE 3: W HETHER A VALID AND BINDING AGREEMENT EXISTS BETWEEN THE PARTIES THAT WAS BREACHED ? [27] The claimant contends that a valid and binding contract subsists between her
and the defendants that should be enforced by the court. The defendants on the other hand maintain that it cannot be said that the claimant entered into a
contract with them or that it was in the minds of or intention of any of the parties that the assistance to be given by the claimant was being done with the intention
to create legal relations. [28] In Keith Garvey v Ricardo Richards [2011] JMCA Civ 16, Harris JA stated at
paras. 10 -12 that: It is a well-settled rule that an agreement is not binding as a contract unless it shows an intention by the parties to create a legal relationship. Generally, three basic rules underpin the formation of a contract, namely, an agreement, an intention to enter into the contractual relationship and consideration. For a contract to be valid and enforceable all essential terms governing the relationship of the parties must be incorporated therein. The subject matter must be certain. There must be positive evidence that a contractual obligation, born out of an oral or written agreement, is in existence. Ordinarily, in determining whether a contract exists, the question is whether the parties had agreed on all the essential terms. In so doing an objective test is applied. That is whether, objectively, it can be concluded Yüklə 0,51 Mb. Dostları ilə paylaş:
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