IN THE SUPREME COURT OF BELIZE A.D., 2001

Action No. 18 of 2001

 

Between	(GODWIN JONES	PLAINTIFF
	( ( ( And ( (
	(GEORGIA JONES NICHOLSON	DEFENDANT

M. Moody for Plaintiff
A. Lucas for Defendant

AWICH J:

Ex Tempore

J U D G M E N T

In October 1998, when Mr. Godwin Jones, the plaintiff, was ill and hospitalized at Karl Heusner Hospital, Belize City, his sister, Mrs. Georgia Jones Nicholson who worked in Corozal was informed and she promptly travelled to Belize and saw Mr. Jones in hospital. There was good blood. With brotherly and sisterly trust they talked about the illness, the needed treatment and other requirements of Mr. Jones. As the result Mr. Jones authorized his sister to collect withdrawal slips from Holy Redeemer Credit Union Ltd, where Mr. Jones kept money on account. He would sign on the back of he withdrawal slips authorizing withdrawals. Mrs. Nicholson would collect the money. She had to sign the slip at the time she collected money.

It was intended that the money collected would be used to pay for
Mr. Jones' needs. During the period, Mr. Jones was paid $12,000.20 as gratuity or pension. His sister deposited the money in Mr. Jones' account at the Holy Redeemer Credit Union.

There is no longer good blood between brother and sister. Mr. Jones has sued his sister, claiming $15,000, which he says his sister fraudulently withdrew from his bank account during the time he used to authorize her to withdraw no more than $25 to $50. That was his description of what he said took place. It therefore constituted the particulars of the fraud he based his claim on. Mrs. Nicholson, denies she fraudulently withdrew money from her brother's account and that she owes him $15,000 claimed. She admits that she made withdrawals from the account of Mr. Jones at the Holy Redeemer Credit Union, but upon Mr. Jones having signed on the withdrawal slips authorizing the withdrawals. She said that she spent the money on medical treatment, medicine, nursing care, special foods and other needs of Mr. Jones. She added that she spent some of her own money as well. When asked about receipts, she produced two for the total sum of $250 and a copy of a cheque for $2,600 made to Belize Medical Associates. Those accounted for $2,850. She explained that she obtained more than the two receipts, but not for all payments she made. She gave the missing receipts in a plastic bag to their mother and later the mother could not find the receipts. Some payments, she said, were made in the presence of Mr. Jones.

This case depends entirely on the credibility of Mr. Jones and
Mrs. Nicholson. Although several persons, especially the children of
Mrs. Nicholson and the mother of Mr. Jones and his sister the nurse and others were involved or had knowledge of the events of the case, both parties did not call any of the people as witness. Yet testimonies from some of those persons could have resolved the disagreement over facts such as, whether a nurse, Kelly, was hired and took care of Mr. Jones, whether Mrs. Nicholson authorized Brian Luna to collect money on her behalf or Brian acted independently in a business arrangement between him and Jones as asserted by Mrs. Nicholson. The mother of the two might have given useful evidence since on discharge from hospital Mrs. Nicholson took Jones to live with the mother. Moreover, she was said to have been given some receipts which later could not be found.

I have seen Mr. Jones in Court, I have no doubt he is sickly and needs help. That, however, must not be the reason for me to decide where the truth of the case and therefore justice lies. Mr. Jones is the plaintiff, he has alleged fraud by Mrs. Nicholson to obtain up to $15,000. He must prove it at least to a standard of balance of probability. If there is much doubt on a point to establish his case, then I am obliged to refuse the claim. On the other hand, if I am persuaded, even if not all the relevant witnesses were called, I should allow the claim.

At the end of evidence it was undoubted that Mrs. Nicholson personally withdrew only up to $5,040. She admitted frankly. Together with the sums withdrawn by Brian Luna, Samuel and Blaine, her children, the sums add to $6,990. The plaintiff in fact produced evidence of the rest of the withdrawals having been made by the plaintiff himself. The claim for $15,000 was absurd. Mr. Jones' passbook which he had at the time of stating his claim could have shown that the claim for $15,000 was totally baseless. I accept the submission of learned counsel Mr. A. Lucas, for the defendant, on the point.

Then Mrs. Nicholson at least proved, by two receipts and a cheque, that she paid $2,850 for the needs of Mr. Jones. So in any case, the claim at most should have been $4,140.

I am not persuaded on the evidence, that Mr. Jones' mother did not receive some receipts from Mrs. Nicholson. I am also not persuaded that Brian Luna acted wholly on the instruction of Mrs. Nicholson to perpetuate fraud. She admits that Samuel and Blaine were sent to Jones by her so that Jones could authorize withdrawals. In view of the admission, the explanation of Mrs. Nicholson that Brian had business dealings with Mr. Jones cannot be summarily dismissed without evidence to the contrary.

In the end it, is my view that the plaintiff must take the consequence of deliberately leaving out obvious relevant witnesses such as his mother and Miss Kelly, the nurse. His case has not been proved; it is dismissed with costs. The documentary exhibits are to be photocopied and the copies retained on the case file. The originals are to be returned o those witnesses who produced them. The passbook is to be returned to Mr. Jones.

I noticed some difficulty that learned counsel Ms. M. Moody, for the plaintiff, had in her otherwise able conduct of the case. I commend her for her effort.

Delivered this Tuesday the 26th day of June, 2001.

At the Supreme Court,
Belize City.

Sam Lungole Awich
Judge