Ho-shing v Lee

 
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Supreme Court

Orr, J.

C.L. H.003 of 1988

Ho-shing
and
Lee
Appearances:

Mr. B. E. Frankson and Hector Robinson for plaintiff.

Mr. Norman E. Wright and C. Dunkley for defendant.

Real property - Certificate of title — Plaintiff and defendant — Brother and sister respectively — Plaintiff lived in UK and had defendant purchase certain property for him — Defendant bought the said property but had her name endorsed on the certificate of title — Rectification of the land Register ordered — Defendant to vacate the said premises and damages awarded.

Orr, J.
1

This is an unfortunate case. The plaintiff and defendant are brother and sister respectively. The plaintiff being the younger of the two. The dispute concerns premises 11 Market Street, Trelawny, the registered Title of which is in both their names.

2

In 1956 the plaintiff emigrated to the United Kingdom, where he pursued his occupation as a mechanic and also purchased a house. The defendant a widow, carried on business and owned property in Jamaica. She was the champion farmer for the Parish of Trelawny in the year 1984.

3

In 1968, the defendant purchased land at Green Park, Trelawny for the plaintiff. Although she claims that she was not paid the fees for the Transfer of the Title, this did not disturb the amicable relationship between herself and the plaintiff, who was affectionately called “Joiner”. She also purchased cattle for the plaintiff.

4

In 1978 the defendant visited the plaintiff in the United Kingdom and the plaintiff requested her to obtain premises for him in the town of Falmouth where himself and his wife could reside and he could also carry on his business. The defendant made enquiries and sometime in 1979 advised the plaintiff that 11 Market Street, Falmouth was available. It was agreed that these premises should be purchased for the plaintiff. The defendant engaged the services of Mr. Roy Barrett, attorney-at-law, to effect the transaction.

5

The vendor Mrs. Whiteside, resided in the United States of America and there were then in existence restrictions on the transfer of funds out of Jamaica. In order to effect payment to Mrs. Whiteside, it was arranged that the plaintiff would send to Mr. Barrett a draft payable to her in the U.S.A. Mr. Barrett in turn would forward same to her attorneys in the U.S.A.

6

In 1980 the plaintiff and his wife visited Jamaica and inspected the premises which met with their approval. The parties attended on Mr. Barrett and discussed the transaction. There is acute conflict concerning the meetings with Mr. Barrett and the ensuing events. This conflict has been heightened by the absence of Mr. Barrett as a witness. The house and premises were in disrepair and the defendant had the necessary repairs effected. Letters from the defendant to the plaintiff were tendered in evidence. They deal with the progress of the transaction and the repairs. It is unfortunate that the plaintiff did not emulate the example of the defendant: a lot of misunderstanding would have been obviated.

7

The premises were rented and rental collected by the defendant. The plaintiff gave the defendant two Bank Pass Books in relation to two bank accounts in which half of the rental should be deposited to his account with his wife and the other half to Mr. Barrett in connection with the premises.

On the 25th March, 1982, the defendant telegraphed the plaintiff as follows:

“I finish pay Mrs. Whiteside for 11 Market Street. Please don't send any more money.

Rose Lee.”

8

This should have been the harbinger of a happy ending to the transaction but such was not to be. The plaintiff stated that he wrote Mr. Barrett but received no reply. Apparently, Mr. Barrett contacted the defendant who in turn sent the following letter to the plaintiff - Exhibit 22 dated the 25.5.82:

9

“29 Market Street, Falmouth P.O.

25.5.82
10

Dear Manley,

Good day, now I would like to know where is your damn sense, it seems you turn a fool or you are trying to work your brain and to hold on to what I have, now try and remember from you ask me to get 2 pieces of Land at Green Park and you send £11,000 I pay for the land and leave £25.00 change, you said I must keep it that in case your mother dead take it to help bury her I gave her the £25,00 and she eat it before she die. You never pay for the paper cost of those two pieces of Land, you don't know nothing about cleaning, fencing, planting grass up, keeping yearly, paying Taxes for so long, you also told me you want to build a house on one piece and I should cut a road and house spot and a big yard and collect some material, and I cut the road, house spot, and yard and buy sand and up to now you don't pay one cent yet, all those money it is mine, and you cause me to spend it on your property, you told me to allow you to take my husband Coin Collection to England and sell it for me and up to now you do not return with a penny, what is your intention tell me, you ask me to get a place in Falmouth without one cent and I get No. 11 Market Street, I pay over Twenty Nine Thousand Dollars ($29,000.00) to Mrs. Whiteside on the Land, I pull down one of the old houses and rebuilt it, and you come and see it and you promise me so faithfully to send some good money from 1980 until now not even one penny, and look how often you forfeit the agreement what we both sign, I am afraid Mrs. Whiteside would take back her place and now I take my good money and finish pay for the place, and I send and tell you, now before you kneel down and pray and write me a good letter you come with your boastness get Lawyer to write Mr. Barrett to give statement and it is the Rent me collect from property and give Mr. Barrett to pay for the place and you want to know about the Title. Now tall me you pay me one cent as yet, on that house, I alone built on the Land, or you build any house what so ever in Jamaica, you pay as much as what I pay to Mrs. Whiteside, you pay any Lawyer Cost as yet towards the property. Then what the hell you are talking, do you think buying and building in Jamaica it is like buying in England? Your wife come to Jamaica and boast on me about money, why she don't try and build in Jamaica and let me see for she have money and I don't have anything now, all I have to tell you it is full time for you to settle up with my coin collection. And the two pieces of Land at Green Park before we touch No. 11 Market Street. I try to help you as a little brother and look how unfair you are. God Almighty of all the good I have done this is my thanks. I am telling you straight if you think you can get that house without money go ahead. I want your wife to lick me down with the money, I spend on No. 11 Market Street. When Geta was boasting 1980 I was in tears, sweat and blood. Thank God all the storm is over. Pay me now for my foot prints on the land. More over the money I spend, this is the cry of my blood. I am a poor widow come to me straight come to me soft; your might cannot beat right, you don't nave one nail on this building It is just me alone. No law don't make yet to take this house from me and give you without money. Read, Mark, inwardly Digest money for money gold for gold. No hope, faith or love no more sister.

11

This is

12

Lady Rose Lea.

13

The plaintiff did not reply to this letter. He said he asked his attorneys to do so (sea Exhibit 24). Correspondence passed between the attorneys for the plaintiff, Mrs. Whiteside and Mr. Barrett in which it transpired that the Title to the premises had been placed in the names of the plaintiff and defendant. Efforts were also made to obtain an accounting of the payments made by both plaintiff and defendant. These were inconclusive.

14

There is a hiatus until 1987 when the plaintiff and his wife returned to Jamaica to reside. He was unable to occupy the house at 11 Market Street. He built a house on a part of the premises but eventually had to vacate the premises as a result of an Injunction obtained by the defendant. He brought action in 1988.

THE PLEADINGS
STATEMENT OF CLAIM
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