Boothe, Albertha Gwendolyn v Stibel Green

JurisdictionJamaica
Judge Campbell, J.
Judgment Date18 March 2002
Judgment citation (vLex)[2002] 3 JJC 1802
CourtSupreme Court (Jamaica)
Docket NumberSUIT NO. C.L. B383/1998
Date18 March 2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L. B383/1998
BETWEEN
ALBERTHA GWENDOLYN BOOTHE
PLAINTIFF
AND
STIBEL GREEN
DEFENDANT

REAL PROPERTY - Recovery of possession - Tenant at will - Whether transfer of premises fraudulently obtained - Whether actual undue influence or presumed undue influence exercised over defendant

Campbell, J
1

The plaintiff claimed recovery of possession of premises known as 7 Bowie Road in Charlton District in the parish of St. Catherine. The defence filed does not admit that the Plaintiff is the registered owner of those premises, and further denies that the defendant is a tenant at will at the said premises. The defence states that if the Court finds that the Plaintiff is entitled to possession, then more hardship will be felt by the defendant in granting the Order for possession than in refusing the Order.

2

The Defendant has counterclaim inter alia; as follows:

  • 6 The Defendant says that at all material times he was the registered proprietor of the premises comprised in Volume 1194 Folio 685 of the Register book of Titles and known as 7 Bowie Road, Charlton District, Ewarton in the Parish of St. Catherine and the uncle of the Plaintiff.

  • 7 In about the year 1991 the Defendant fell in arrears with his mortgage with the Jamaica National Building Society and asked the Plaintiff for her assistance in having the loan discharged.

  • 8 The defendant asked the plaintiff to take over servicing of the loan to the Jamaica National Building Society and /or alternatively to repay same which at that time amounted to the sum of $89, 000.00.

  • 9 The Defendant at no time intended to sell nor transfer the said premises to the plaintiff during his lifetime but merely obtained a loan from her to prevent the premises being auctioned.

  • 10 The Plaintiff, sometime in the year 1992, fraudulently, unlawfully and without the Defendant's knowledge and/or consent procured and obtained a transfer of the premises to herself.

  • 11 The Defendant has not and has never received any money from the Plaintiff for any purported transfer of the premises.

  • 12 Further and/or in the alternative, the plaintiff exercised undue influence on the Defendant due to his age and illness to attempt to obtain a transfer of the said property to herself.

3

The Plaintiff in her Reply and Defence to Counterclaim denied the allegations of the Defendant and contends that the Defendant willingly transferred the premises. The Plaifitiff has also denied fraud and asserts that the Defendant initiated the Plaintiff's acquisition of the said property.

4

Plaintiff's Case

5

The Plaintiff is 67 years of age and a divorcee; she has lived in England for the past 40 years. She worked as a domestic supervisor in a hospital, but is now retired. The defendant has known her uncle since her early childhood, when she lived with him and his mother, her maternal grandmother. Both, the defendant and the plaintiff migrated to England, he in 1955, and she in 1960. The plaintiff testified that whilst in England, the relationship between herself and her uncle started rather tentatively. However, her evidence was "she had gotten on well with his wife, who was a mother and an aunt I did not have." The Defendant and his wife returned to Jamaica in 1986, and his wife died some two years later, on the 1 st January 1988." The plaintiff was unable to attend the funeral and sent £50 for her uncle. This he denied. She said, "After this I sent him money and he would confirm receiving it." The plaintiff, came to Jamaica in September 1988, bringing at his request, some intimate female garments for 'a friend that has brought him back to life'. The plaintiff did not like the uncles' friend so she never gave him the articles she had brought. She returned to England in October 1988, and there was no communication between herself and the Defendant until May 1990, when he wrote to her borrowing $89,000, because, "he was in financial problems." The Plaintiff in her evidence in chief, testified that she did not reply. The Defendant wrote again, in a letter dated 15 th June 1990; (Exhibit 2) states, inter alia;

I just write you to let you no (sic) that if you are interested in the place I have out here it is all up to you to take it off me. I owe the bank some money and true (sic) my pension is not coming the right way the interest rise. So if you want it before they put it Auction Sale, please write to Mr. Wesley Scott, Senior Supervisor, Jamaica National Building Society, etc. .... mortgage account no. 86965,....

So you can get your title ready from them. I have nothing to do with it, so if you want somebody else to have it all before, you can....

6

She had also received a telegram from a sister, alerting her that they were going to take away the defendant's house.

7

Still reluctant to respond, she testified she spoke to a friend and was encouraged to see her solicitor, Janet Standbury. The plaintiff made direct contact with Mr. Scott at Jamaica National Building Society (JNBS), who wrote to her. She instructed her solicitor to contact Mr. Scott.

8

She applied to National Westminister Bank for a loan of £8,000.00. The bank approved £6,000.00. She withdrew £2,000.00 from another account and handed the proceeds to her lawyer. She advised her sister in Jamaica, to secure a lawyer for her uncle. Subsequently, Mr. Bartholomew, an Attorney-at-Law, contacted her solicitors, on behalf of the defendant.

9

The Plaintiff next visited the island in December 1990 and stayed with a sister in Tivoli Gardens. On a visit to the defendant, he appeared unwell and the Plaintiff, along with her sister took him to the doctor. The defendant remained with them for a week in Tivoli Gardens. On his way home the Defendant indicated he wanted to stop at his attorney Mr. Bartholomew to make a Will. The Plaintiff's sister signed this Will as well... (Exhibit 4)

10

The plaintiff returned to England on 30 th January 1991. Summoned to her lawyer's office, she signed the transfer for the premises for 7 Bowie Road. Her next visit to Jamaica was in February of 1994. She stayed with the Defendant and found him aggressive and moody. It was uncomfortable for her to remain there. She alleged that on this visit, she was given poison to drink. She remained in the island for nine months, returning to the United Kingdom, in October 1994. Of her visit, the plaintiff said, the defendant appeared not to want her around. He told her that she had bought the land and not the house. Her nephew, Patrick Shannon, is presently living at 7 Bowie Road with his wife and two children. She complains that she was barred from picking coconuts on the premises. She said she was petrified of the occupants and had to get protection from them.

11

In cross-examination, she states that after giving the money to her lawyer, she came to Jamaica and remained here for six months. She denied that it was in April 1991 that her uncle signed the Will. She agrees that the mortgage was discharged in 1991. She admits in contradiction to her evidence in chief that she had responded to the first letter of the defendant, requesting money. Her reply was in a letter dated 9 th September 1990, in which she told the defendant that he should tell his lawyer "that you cannot afford to pay your mortgage. So you are turning over to your niece who is in England. Tell your lawyer that you need him to draw up two papers to say so, then you sign it in front of him with your witness and he can either send it off to my lawyer or you posted (sic) it to me." (See exhibit 7). In that same letter she had earlier cautioned him that "I am asking you to read carefully and make sure you understand what it means is very serious. This is not a joking matter for me."

12

She said in cross-examination, " I had to advise him because he was more for the girls, he was wasting his money. I would not let him have my money just like that; he needed something to prove...." She denied going to Linstead and meeting Mr. Green there, and having seen the defendant being handed the Certificate of Title. She denied that she saw where Mr. Green placed the title.

13

The plaintiff said the defendant regarded her as his daughter. She testified that she had not advised him about the name of any specific lawyer. She said she had understood the words "to take off me" in the defendants letter dated 15 th June, 1990, to mean the same as sell. She denied that she had gone to Mr. Bartholomew's office with two gentlemen, one of whom was wearing a hat, purporting to be Mr. Green.

14

The plaintiff's case was supported by Mr. Wesley Scott of JNBS, Linstead. He testified that, "The defendant had two mortgages with me around June 1990. He had dealt personally with Mr. Green", he says, "The accounts were in serious arrears in respect of both mortgages, serious that it was about to be processed for sale by Public Auction." In his letter to the plaintiff's solicitors, Mr. Scott stated, "The mortgages are not transferable. Mr. Green would have to transfer ownership of or share it jointly with your client by adding her name to the title. Then, she would have to make an application to us for a mortgage. However, we have uivited Mr. Green to come in and discuss the matter with us. So, as soon as this is done, we will inform you of his decision".

15

Mr. Scott testified, "as a result of the letter, I met with Mr. Green and informed him we were contacted by solicitors who were acting on behalf of Ms., Gwendolyn Green (the plaintiff), whom I understand was related to him." He said that he explained to the defendant that a mortgage was not transferable to third parties at Jamaica National Building Society (JNBS). He said he explained to the defendant that if a transfer is to take place, be it jointly or solely, he would need to see a lawyer. Mr. Scott said the defendant advised trim that he would be...

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