surrounding the construction of this house, it is clear that the 2
nd
defendant
regarded the construction of the house as a kind gesture, done out of love and
affection by her children.
Mistaken Fact and Acquiesence
[96] It has
also been the claimant’s contention that she has mistakenly improved the
2
nd
defendant’s property and they have acquiesced in this. In support of this
contention, counsel relied on the dictum of Fry J in Willmott v Barber (1880) 15
Ch. D. 96. His lordship opined at pp. 105-106 that:
It has been said that the acquiescence which will deprive a man of his
legal rights must amount to fraud, and in my view that is an abbreviated
statement of a very true proposition. A man is not to be deprived of his
legal rights unless he has acted in such a way as would make it
fraudulent for him to set up those rights. What, then, are the elements or
requisites necessary to constitute fraud of that description? In the first
place the plaintiff must have made a mistake as to his legal rights.
Secondly, the plaintiff must have expended some money or must have
done some act (not necessarily upon the defendant's land) on the faith of
his mistaken belief. Thirdly, the defendant, the possessor of the legal
right, must know of the existence of his own right which is inconsistent
with the right claimed by the plaintiff. If he does not know of it he is in the
same position as the plaintiff, and the doctrine of acquiescence is
founded upon conduct with a knowledge of your legal rights. Fourthly, the
defendant, the possessor of the legal right, must know of the plaintiff's
mistaken belief of his rights. If he does not, there is nothing which calls
upon him to assert his own rights. Lastly, the defendant, the possessor of
the legal right, must have encouraged the plaintiff in his expenditure of
money or in the other acts which he has done, either directly or by
abstaining from asserting his legal right. Where all these elements exist,
there is fraud of such a nature as will entitle the Court to restrain the
possessor of the legal right from exercising it, but, in my judgment,
nothing short of this will do... in my judgment, when the Plaintiff is seeking
relief, not on a contract, but on the footing of a mistake of fact, the
mistake is not the less a ground for relief because he had the means of
knowledge. Then it is said the Plaintiff expended money on the faith of his
mistake.
[97] In Ramsden v Dyson(1866) LR 1 HL 129, Lord Cranworth said, at pp 140-141:
If a stranger begins to build on my land supposing it to be his own, and I,
perceiving his mistake, abstain from setting him right, and leave him to
persevere in his error, a court of equity will not allow me afterwards to
assert my title to the land on which he had expended money on the
supposition that the land was his own. It considers that, when I saw the
mistake into which he had fallen, it was my duty to be active and to state
my adverse title; and that it would be dishonest in me to remain wilfully
passive on such an occasion, in order afterwards to profit by the mistake
which I might have prevented.
[98] If the claimant’s version of how she came into possession of the titles was
accepted, it would appear that she would have laboured under a mistaken belief
as to her legal rights and expended her resources and the first two elements as
regards Fry J’s five probanda in Willmott v Barber, would have been
satisfied by the claimant. The third element however, creates a difficulty. In the
context of a family arrangement to construct a house to improve the living
accommodation of parents, an endeavour that the claimant herself volunteered
and initiated out of love and affection for her parents, on a balance of
probabilities, the evidence does not reveal that the defendants, particularly, the
2
nd
defendant was aware that the claimant was of the view that she would also
acquire a legal interest in the property in exchange for her financial contributions.
[99] As stated by Fry J:-
[I]f he does not know of it he is in the same position as the plaintiff, and
the doctrine of acquiescence is founded upon conduct with a knowledge
of your legal rights.
The submission that the claimant was labouring under mistaken facts and that
the defendants acquiesced in that mistake therefore fails. Also in any event, the
claimant’s version concerning how she came into possession of the titles has
been rejected.
I
SSUE
5:
W
HETHER THE DEFENDANTS WERE UNJUSTLY ENRICHED AT THE EXPENSE OF
THE CLAIMANT
?
[100] In her statement, the claimant stated that she expended a total of $4,800,000.00
in relation to the construction of the house for her parents for material, labour and
technical work but she did not keep all of her receipts and documents showing
the money she sent to workmen and people in Jamaica who assisted in paying
the workmen as she did not expect her parents to turn on her in the way they
had. It was also her evidence that she did the calculations to arrive at
$4,800,000.00 using information taken from books and other items. She
however had not brought the book as she did not know that it was important. She
nonetheless maintained that she had a total of the costs for labour and other
things added up.
[101] She said that she sent money to different people (Patrick Hutchinson, Nydia
Gordon, Michael Baugh, Keith Gordon and Una Shakes) via Western Union to
pay bills for the construction of the house when she was in the U.S. and to pay
workers. In addition to the costs for labour and material, she paid all the costs for
fixtures, fittings and the preparation of the plans and drawings for the
construction of the house and took her workmen from St. Ann. She said that
she transported some of the cement in her ford explorer to St. Elizabeth. In 2005,
cement was scarce and she bought cement in Kingston, St. Ann and Northern
Hardware in St. Elizabeth but most of the material, she bought in Santa Cruz and
Maggotty.
[102] She stated that she gave some receipts for labour and that in the past when the
Carpenter and the Masons worked on her house in Cardiff Hall, they signed a
book. She further stated that she paid all of them but there were no receipts for
labour and no record of them signing. She explained that this was because she
was not here for the construction of the Elderslie property and her neighbour paid
them and gave receipts. She would pay them when she came down to take
photographs. She also indicated that she was not surprised that neither the
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