lead in organizing the construction and renovation as she was the most capable
one with business sense and the only one here.
[51] The 2
nd
defendant recalled that in or about 2006 or sometime after the
construction of the house had begun, the claimant asked to be allowed to look at
the title. She handed it to her and the claimant went into the room in which she
stayed when she visited. She heard the claimant talking to someone as though
she was on the telephone and then exited the room and informed her that she
had an important appointment early the next morning in Ocho Rios and
eventually left that same night, even though she (the 2
nd
defendant) had
suggested that she leave very early the next morning. She did not permit the
claimant to take away the titles nor was she aware that when the claimant left
that night she took both the Duplicate Certificate of Title and the Indenture for
adjoining lands owned by the 1
st
defendant.
[52] This court does note however that in para. k of her defence, the 2
nd
defendant
contended that the claimant requested to see the title and the indenture and
thereafter, stated that she needed time to review the documents and would
return them the following day, after she had concluded her business in Ocho
Rios but had failed to do so. That would indicate that not only was the 2
nd
defendant aware that the claimant took the title and the indenture but may have
given her permission, if only for a brief period, to do so.
[53] On cross-examination, she reiterated that although the claimant was the one who
initiated the building of the house, she did not offer to give the title to her for
helping her to build the house nor did she give her the title to hold so as to put
her name on it. She further stated that the claimant never told her that she was
short on money or her funds were being exhausted but she did state that if she
wants the title, she would have to get a lawyer.
[54] She gave further evidence that material was purchased and put down from 1995
to build around the house which they then occupied. In her defence filed, she had
stated that this material was purchased by two of her sons but on cross-
examination she admitted that it was not only her two sons who purchased the
material.This could mean that her husband and herself and/or the claimant and/
or her other children made a contribution to the purchase of these materials.
According to the 2
nd
defendant, it was the first material the masons used on the
house in question and none of it was spoilt.
[55] The claimant and her witness Mr. Rohan Henry also concurred with the fact that
there was material on the property prior to the start of construction and that some
of that material was used in constructing the house. Mr. Henry stated that they
did not use the marl or about 50% of the blocks on the building but the rest
of the material, which included about 20 lengths of steel and a half load of stone,
were used. The claimant testified that there was a small amount of blocks, marl
and steel there but the blocks and marl had become unusable and eventually
had to be used to dump up the building. The steel was less than a quarter ton
and was used in the building.
[56] The 2
nd
defendant further denied that she had said that the claimant was the only
person who could manage to do the house and that she was the only one who
built the house. She stated on cross-examination that when the claimant got
involved, the claimant knew that she (the 2
nd
defendant) was waiting on her sons
for 10 years and that her sons had the ability to finance the construction of the
building. The claimant however came to her before her son did in early 2005.The
claimant knew that the 2
nd
defendant wanted to build around the initial board
house but stated that it would not look good and that she was going to raise the
house behind the board house so they could live a good life before they died.
The Decision to Replace rather than Repair
[57] The claimant gave evidence that after the plans were prepared, Mr. Rohan
Henry went to Elderslie, inspected the board house and found that it could not be
repaired. It was not safe to go on the roof, as everything was rotting and
unsafe. She had therefore done the right thing in arranging the plans. This
conversation is however unaccounted for in Mr. Henry’s evidence. He agrees
that he and Mr. Glendon Clarke prepared the plans, but does not state that he
found the board house to be irreparable. He did however state that he did not
recall the details of the conversation word for word but rather in context. He
testified that when he was to commence the work there was a meeting amongst
himself, the claimant and the 2
nd
defendant and it was agreed that a house would
be built and where he would stay.
[58] In response to the suggestion that when Mr. Henry looked at the board house, he
said it could not be repaired, the 2
nd
defendant stated that she and Mr. Henry had
no argument about her board house and repair. She testified that he and the
claimant came and measured the place where the house was going to be built
but he never came to do anything to her house. He never came on business to
fix board; the claimant came to line out the new house, she further testified.
[59] In her defence the 2
nd
defendant agreed that the board house which was built
sometime between 1972 and 1973 had over time become dilapidated and
uninhabitable. Furthermore, she averred that the board house was severely
damaged in 2005 by hurricane Katrina. However on cross-examination, she said
that she did not know about Katrina damaging the house, but she knew about
Dean. Interestingly, the claimant however also disagreed with the suggestion that
the board house was destroyed by hurricane Katrina in 2005.The 2
nd
defendant
also said that the house was leaky and the time had come to change. Mr.
Franklyn Dixon also gave evidence that the house was leaking and in one room,
the roof and floor caved in. The 2
nd
defendant however denied that in 2005,
early one morning she called the claimant crying and told her that she had not
slept all night as it was raining and she had to be bailing water out of the house.
[60] It seems clear that from 1995, the defendants thought it necessary, at the very
least, to make an addition to the then existing board house. That is why the
materials were purchased, on the 2
nd
defendant’s evidence by persons, who
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