Johnson v Brown (A.K.A. Sears) and Powell T/A Powell's Marketing and Management Services

JurisdictionBahamas
CourtSupreme Court
JudgeMarques, J.
Judgment Date04 Dec 1997
Docket NumberNo. 1777 of 1989

Supreme Court

Marques, J.

No. 1777 of 1989

Johnson
and
Brown (A.K.A. Sears) and Powell T/A Powell's Marketing and Management Services
Appearances:

Mr. Elliott Lockhart with Ms. J. Basden for plaintiff.

Mr. John Z. Deal for 1st defendant.

Mr. Anthony McKinney with Ms. J. Osadebay for 2nd defendant.

Trusts - Constructive trust — Plaintiff claimed a declaration that the first defendant held a lot as a constructive trustee for the plaintiff — First defendant joined the second defendant as a party to the proceedings and counterclaimed against the plaintiff and the second defendant for an injunction, an accounting in respect of rents received from the property and damages — Held that the presumption of undue influence had not been dispelled — Judgment for the plaintiff.

Marques, J.
1

On November 11, 1997 I gave judgment for the plaintiff with costs against the first defendant and at the same time dismissed the counter claim brought by the first defendant against the plaintiff and the second defendant with costs to the latter against the first defendant on the counterclaim. These are my reasons for so doing.

2

The original plaintiff Dudley Johnson died in 1992 at about the age of 73 years. I will refer to him as the Deceased. The son, Lascelles Alexander on, to whom was granted Letters of Administration of the Estate of the Deceased was substituted to continue the action on behalf of the estate of the Deceased.

3

The writ filed by the Deceased against Pamela Brown, also known as Pamela Sears (the first defendant) claims a declaration that the first defendant holds lot 83, Sayles Avenue, as a constructive trustee for the plaintiff. I refer to it as the Sayles Property.

4

The writ also claims an account by the first defendant of profits made by the Sayles Property and an order transferring the said property to the plaintiff and payment of profits found on the accounting.

5

The first defendant joined the second defendant as a party to the proceedings and counterclaimed against the plaintiff and the second defendant for an injunction, an accounting in respect of rents received from Sayles property and damages.

6

The Deceased and the first defendant became acquainted sometime between the years 1982 and 1983 when the Deceased at that time was attending the same church in which the first defendant sang in the choir. In the course of his attendance the Deceased took a liking to the minor son of first defendant, named Nolan. It is said that the Deceased thereafter provided financially (including pocket money) over the succeeding seven years of his friendship with the first defendant for the educational needs of Nolan.

7

The Deceased was a person who engaged in his own business of selling diesel oil and gas. In this business he employed on occasions about three persons, and his moneys over the years were held at several local banks in current and fixed deposits.

8

It is not disputed between the parties that at the time of the Deceased's death there were two properties registered in the name of the Deceased being a property situated at Step Street, and another in Mackey Street, the title deed for the former having been handed to the first defendant by the Deceased to keep. This Step Street property was also the subject of a devise to the first defendant under two wills of the Deceased.

9

The Deceased, as described by the first defendant, was said to be of Jamaican origin, a businessman, efficient, of average education, a very old, jealous man, kind, gentle at times, generous at times, generally, but more specifically to the first defendant, but though not one to keep friends. The first defendant on the other hand is possessed of managerial skills and holding a Master's Degree in business administration.

10

The friendship between the Deceased and the first defendant came to a sudden halt following the purchase of the Sayles Property. The reason for this the first defendant contends was the jealous reaction of the Deceased one day sometime in October/November 1989 when she alleged the Deceased observed the presence of her then male friend outside of her house in Gleniston Gardens. On the other hand the Deceased prior to his death contends it was due to his discovery, after vain enquiries of the first defendant as to the status of the purchase of the Sayles Property, of the fact that she had taken the conveyance in her name. He claimed to have discovered this by obtaining the services of someone to make a search at the office of the Registrar. Subsequent to this discovery the Deceased lodged a criminal complaint of stealing against the first defendant in respect of the purchase monies. This complaint was dismissed in February 1994.

11

Counsel had an agreed position in this matter. It was agreed that the land, the Sayles Property, was purchased by the first defendant in her own name from one Peter Wong under a conveyance dated the 13th of January, 1988. The purchase monies were provided by the Deceased, firstly, by a cheque dated the 12th of September, 1988. This cheque was signed by the Deceased in a blank amount at the time and given to the first defendant. The cheque was subsequently made payable to the first defendant by her for the sum of $100,000. This was followed by a further cheque issued by the Deceased in the amount of $30,000 and made out to the first defendant, Pamela Brown who is also known as Pamela Sears; that as Mr. Johnson, the if Deceased, provided the purchase money, the rebuttable presumption arises in law that the first defendant held the Sayles Property on a resulting trust for the estate of the Deceased.

12

The agreed position of counsel further recognises that the presumption of the resulting trust can be rebutted in various ways including inter alia by evidence that the late Mr. Johnson intended to make a gift of the property to the defendant and which gift must have ensued from the free and unduly influenced will of the Deceased; that the onus of proving that a gift was intended is on the person who so alleges, that is, the first defendant, has the evidential burden; that if the Court holds that no gift was intended, then the Court must order the first defendant, Pamela Sears, to transfer the Sayles Property to Mr. Johnson's estate with the consequential order as to costs in respect of the action brought by the Deceased and the counter-claim brought by the defendant; that on the other hand, if the Court is satisfied that a gift was, indeed, intended, then Pamela Sears is entitled to possession of the Sayles property, and the plaintiff and the second defendant, who was the Management company that collected the rents after the death of the Deceased, are jointly and severally liable to account to the first defendant, Pamela Sears, for all rents received and which would have been received by the first defendant but for the conduct of the plaintiff and the said Management Company together with costs to the first defendant.

13

Dudley Johnson having died in 1992 the only direct oral evidence on the circumstances attending the provision of the purchase price was that coming from the first defendant. In addition to that testimony however the parties placed before the Court the evidence of the Deceased and the first defendant together with that of their witnesses given before and as recorded by the Stipendiary magistrate on the hearing of the criminal complaint (the depositions) that had been laid by the Deceased against the first defendant.

14

Aside of the depositions evidence was adduced before this Court from Peter Wong, the vendor of the Sayles Property, Mrs. Ruth Bowe Darville, an attorney at law to whom the deceased was introduced by the first defendant to assist in the preparation of his first will, Prince Rolle a Superintendent of Police and Richard Murphy. The latter two witnesses were former tenants of the Sayles Property. Their evidence was confined to their previous testimonies as set out in the depositions and the effect of which was that the first defendant was the person to whom their rents were paid. There is indeed no dispute that the first defendant was the beneficiary of the rents accruing from the Sayles Property and the Mackey Street property. The first defendant says the rents were allowed to her by the plaintiff who told her to apply them to the mortgage on her Gleniston property where she lived. An observation was made that it would appear that any permission by the plaintiff for the first defendant to keep the Sayles rent would be superfluous as according to her the property was hers.

15

Peter Wong confirmed that the initial purchase of the Sayles Property occurred between himself and the first defendant. That it was after the signing of an agreement under which a balance of $30,000 of the purchase price was to be paid by way of a promissory note signed by the first defendant that he met the Deceased. Thereafter the note became unnecessary after his then discussions with the Deceased. At that meeting no discussion took place with the Deceased as to the name of buyer though the witness did say in the magistrate's Court that the Deceased at some time did say he and the first defendant were buying the property.

16

The testimony of Mrs. Ruth Bowe Darville was as regards the preparation of a first will for the Deceased upon the instructions of the first defendant and the replacement of that will by another at the instance of the Deceased. Both wills were made before the purchase of the Sayles Property and the parties agree they conferred the greater portion of the Deceased estate upon the first defendant.

17

Examining the evidence of the Deceased as set out in the depositions, counsel for the first defendant showed inconsistencies and denials by the Deceased then that are inconsistent with the case now presented on behalf of the Deceased. The inconsistencies and denials relate to the extent of...

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