Supreme Court
Action No. 162 of 1981
2nd June, 1982
Rajasingham, J. (Acting)

Value of house - Fabricated evidence by Plaintiff to establish higher value of house - Court rejecting fabricated evidence and ordering costs against Plaintiff.

JUDGMENT

The evidence in this case has been rather long and protracted and matters have not been helped by repeated amendments to the pleadings. However, I have sought to arrive at the real issue between the parties in this case; and that issue has finally boiled down to one question really - did the defendants agree to a price of $17,000.00 and then trick the plaintiff into signing a transfer form in blank and obtain a transfer of the property without in fact paying her anything, or, was the property in fact sold and paid for at $5,000.00 by agreement between the parties? Thus the one most important factor in this case becomes the existence of fraud on the part of the defendants.

The plaintiff gave evidence in her own behalf and stated that she had had several buyers offering over $30,000.00 for the property and in fact had one buyer ready and willing, at the time of the transfer to her daughter and son-in-law, to buy the property for $36,000.00 As proof of this she called the purported buyer one Albert Richards who stated this to be so and who also identified a receipt - "E.W. 1" - as being evidence of his intention at that time. This receipt was produced by the plaintiff. She said she gave this receipt to Richards on the 17th August, 1979, when she borrowed $800.00 against the agreed purchase price so that she could pay off a personal loan to the Royal Bank and obtain the title document to the property in dispute, namely premises Numbers 18 and 20, 6th Avenue, Corozal Town. The receipt states that a sum of $800.00 was received by Elsie Vasquez, the plaintiff's maiden name, (quote) "Being Part payment towards $36,000.00 for a house and lot, situated in Corozal Town". It is stamped on the back with a cancelled ten cents stamp.

The plaintiff thus seeks to establish through this receipt and through Albert Richards that in August, 1979, this property had a market value of $36,000.00. This is an important factor in the plaintiff's case of fraud against the defendants for she thereby seeks to show the absurdity of the defendants' statement that the purchase price for her half share was agreed at $5,000.00. The plaintiff went on to say that she agreed to a slightly reduced price of $17,000.00 for her half share of this property. She says that her daughter refused at the eleventh hour to sign the transfer to Albert Richards. She said she then had to borrow$800.00 to return Richards advance and that he gave her the receipt after "cancelling" it. She says that after her daughter had, at the Bank, refused to sign the transfer, they returned to her daughter's home. She says her daughter called her back as she was leaving for her own home and, in the presence of the first defendant, said he had spoken to someone and was willing to buy the house and she told them she would sell her share to them for $17,000.00; she was asked to return the next day. When she went there on the following day she accompanied her son-in-law and daughter to the Lands Office. There she says her son-in-law, Kenneth, (quote) "got a paper and said we had to go to a J. P. to sign it." She says they went to Oxley a J. P. who was at the taxi stand and asked him to witness their signatures which he did at the clinic. She says that when she signed the paper, it only had some pencilled Xs besides the printed matter. She says Kenneth then told her that he had to take the paper to Belmopan where they would give him a paper. She says he said the Bank Manager had told him this. He, Kenneth would then take that paper to the Bank and get the money and pay her. She says he went to Belmopan, and she waited for him till 11 p.m. but he did not come to her house as he had promised he would. On the following day she went to her daughter's house and learnt that he had gone to the Bank. She followed him to the bank and met him there and at his suggestion returned to her daughter's house to await him. She says he came back, had a paper signed by his wife and went back to the Bank. He came back about 20 to 25 minutes later and told her, she says, that the Bank Manager wanted her father's name taken off the Town Board register. She says she went with Kenneth to the Town Board Office and there asked Mr.. Leiva the clerk how much was owed in back taxes; she was told it was two or three hundred odd dollars and Kenneth paid it after borrowing sixty five dollars from her. She says they returned to his house and there she asked him when she would be paid and he said he had been told to insure the house for $15,000.00 before he would get the money. When she remonstrated saying she had signed everything and was still having to wait, her daughter came out and said "inter alia" that she was not going to get any more money.

The plaintiff tendered as "E.W. 2" a photocopy of the transfer form signed by her. She says it contained no handwritten words on it when she signed it. She thus denies that the price of the property as it now appears, $5,000.00 was on it when she signed it.

The plaintiff in seeking to establish the value of the property stated that she had the houses valued by one Ruben Flowers. It transpired, however, that Flowers' valuation was based on the cost of putting up similar structures and not on these houses themselves. In reply to me he brought the cost of construction of $17,000.00 down to $12,000.00 as being the estimated value of these two houses. The plaintiff then says she had consulted Tyrone Edwards, Lands Officer, and (quote) "on what he told me I asked for $18,000.00" for the land. She thus sought to establish the value at $35,000.00. When, in due course, Tyrone Edwards was called by the defence he gave the total value of this property as being between $8,000.00 and $10,000.00; he said this in cross-examination and this was not seriously pursued. The plaintiff's counsel did not even ask him whether he had at any time been consulted by the plaintiff about the value of the land and told her anything that would justify her putting a value of $18,000.00 on the land alone. Edwards valued both land and houses at between $8,000.00 and $10,000.00. Thus taking these witnesses valuations in court, the property certainly does not appear to be worth anywhere near $36,000.00. Flowers places a value of $12,000.00 on the houses alone and Edwards places at most a value of $10,000.00 on both houses and land.

Thus Richards' evidence becomes absolutely crucial to the plaintiff's case. The transaction with Richards which involved giving the receipt commenced, according to the plaintiff's evidence, on the 16th August, 1979, and terminated with the return of the receipt to the plaintiff on the 18th of August, 1979 at the very latest - the Saturday morning. In fact it is more likely to have been returned on the 17th of August, 1979 because the plaintiff says her daughter asked her to come back next day and she did, and that on that day the transfer was signed; the transfer was signed on the 18th August, 1979.

The defendants' Counsel did not really tackle the question of value seriously and this was most unfortunate. The defendants evidence is that the plaintiff told her daughter that she had several buyers who would pay between $30,000.00 and $34,000.00 and that three named buyers actually came to see the premises and subsequently withdrew their offers because the houses were too old. She, the second defendant, says she never actually met Richards but was told by the plaintiff that Richards was offering $15,000.00. She says she refused to sell because she thought the price too low. She then says she told her mother that she and her husband would buy it if her mother would sell her share at $5,000.00. She says this was as much as they could afford to pay. She says her mother agreed. The first defendant's evidence is in essence the same except for minor contradictions as to detail. Thereafter the defendants' version is almost the same as the plaintiff's except on two important points; they say that the transfer form was filled out by Edwards on the plaintiff's instructions and that on his second return from the Bank on the 21st August, 1982 Kenneth Torres brought back the money and paid $5,000.00 over to the plaintiff at his dining table in the presence of his wife. The disagreement, therefore, crystalises into two matters; namely, was the transfer form filled out by Edwards before the plaintiff signed it and secondly, was the purchase price of $5,000.00 as reflected in that transfer form in fact subsequently paid?

The only relevant evidence on these points other than the evidence of the parties, is the evidence of Tyrone Edwards and to a more limited extent, of the J.P. Mr.. Travers Oxley. Tyrone Edwards was the Assistant Lands Officer at Corozal at that time. He was called by the defendants and did not attend until he was served with a subpoena. The cross examination disclosed nothing that could show him to be a partial witness. His evidence was that in all applications for transfer forms it was necessary for his office personnel to enter the block number and parcel number in the form to enable the parties to complete the transaction. The Lands Officer could hardly do this without being told who was selling the land and perhaps the location of the land in question. Edwards says that they assist prospective transferors and transferees by filling out the form for them and by marking the various places for signatures. An examination of "E.W. 2" shows the initials of each signatory and the letters "J.P." against the various places that require signatures. Edwards said he filled up "E.W. 2" with all the particulars appearing on the front page, including the price of $5,000.00. He says he did this at the request of the parties; he cannot remember which of these three persons actually asked him to do so. He says he did this at their request on a blank form which he got for them when they called at his office. He is certain it was done before the form was signed. He at first said the Lands Office personnel always filled out the form in full and when pressed, later agreed that they did not do so when his office was not the office at which stamp duty was going to be paid: he did insist, and I think it must be true, that they always filled out the block numbers and parcel numbers and marked crosses at all the places that required signatures. He said a curious thing in re-examination; he said he could not recall that it was his handwriting until he saw "E.W. 2" in Court today. Perhaps land transactions in Corozal are numerous and he did not know these parties well enough to remember this particular transaction. I do not think he was trying to pretend he had no reason to remember this transaction; the parties themselves do not claim to know him very well.

The other witness Mr. Oxley knew the parties very well; he says he knew the plaintiff better than the defendants. He too attended Court on a subpoena served by the defendant. Mr. Oxley's evidence is that he is certain that the front page of the document "E.W. 2" was filled up when he and the parties signed the transfer form. He said that the names of the persons he was purporting to identify on page 2 (side 2) of document "E.W. 2" had not been filled in but that the persons signed that side before him and that he left the names to be filled in later because he knew the parties well. He had several opportunities to go back on this but did not do so even though it was made abundantly clear that it was improper for him to have signed an incomplete certificate of identification. He also repeatedly insisted that the front page had been filled in before he signed the form. Counsel for the plaintiff at one stage suggested that the witness could hardly say otherwise because to say otherwise would mean to admit he had not done his job properly; but, as it turned out, Mr. Oxley did not know he had to make certain the parties understood the contents. He himself, according to his own evidence, only glanced at the front of the document. It is my opinion, seeing the demeanor of the witness and hearing his evidence, that Mr. Oxley is ignorant but not dishonest.

We come to the submission that gave me the most worrisome time in this case - the suggestion of plaintiff's Counsel that the plaintiff could not have sold her only asset worth $18,000.00 for a mere $5,000.00 when the consequence would be a bleak future for herself. As against this one has the submission of defence Counsel that the defendants could never have agreed to $17,000.00 because there was no way in which they could have raised such a sum. This prompted Counsel for the plaintiff to allege, as part of his case, that the defendants had in fact all along had no intention of paying the plaintiff. All these argument are based on the possibility of the property in fact being worth $36,000.00. All these arguments become academic if the property was in fact worth less, say $15,000.00. Thus the evidence of the value of the property becomes crucial to the whole case.

The evidence for the plaintiff on this aspect is, beside the evidence of the plaintiff herself, the evidence of Mr. Ruben Flowers and of Mr. Richards. Mr. Flowers' evidence which was most unimpressive, was that these houses were worth about $12,000.00. Mr. Richards' evidence is that he is willing to pay $36,000.00 for this property and in support of that evidence the plaintiff produced receipt "E.W. 1"

The evidence for the defence could have been more helpful if Counsel had given his mind to this aspect of the case. However, what little there was of it is as follows: Mr. Edwards values the property at between $8,000.00 and $10,000.00: the Royal Bank was willing to advance $10,000.00 against this property, a value of $8,820.00 was assigned for estate duty purposes in 1974 to the two houses and the leasehold interest on this lot; the rest is the evidence of the second defendant as to what she was told by her mother the plaintiff about prospective buyers and the prices they were willing to pay - buyers who subsequently backed out. We also have her evidence that her mother wished to sell Mr. Richards for $15,000.00. This piece of evidence tended to be treated as fiction by both Counsel, each for his own ends. If, however, it were true, it would explain the whole transaction as having happened exactly as the second defendant said it happened.

The evidence that seeks to give the lie to this assertion is the evidence of Mr. Richards and the receipt that seeks to show he was telling the truth. Hence the receipt becomes the single most important piece of evidence in this case.

The plaintiff's evidence is that she borrowed $800.00 from her prospective buyer Mr. Richards so that she could repay the personal loan she had obtained from the Bank and thus obtain possession of the title document relating to this property. She borrowed this against the purchase price to be paid by Mr. Richards for these premises. Thus far the plaintiff's story is probably true, especially since the second defendant had been told that Mr. Richards wished to buy the property. This establishes that Mr. Richards did in fact make an offer for the property; the dispute is really on the price he had offered. The second defendant thought the price was $15,000.00 but the plaintiff alleges that it was in fact $36,000.00. The plaintiff says she gave receipt "E.W. 1" to Mr. Richards when she borrowed the $800.00. This receipt states the purchase price as being $36,000.00. This borrowing appears to have been on the 16th August, 1979, because in her examination-in-chief the plaintiff said she borrowed the money and gave him the receipt and when she went back to the Bank the next morning her daughter refused to sell at that price; she says she and her daughter then returned to her daughter's home and as she was walking away, her daughter called her back and said she and her husband would buy it and that the plaintiff should come back the next day. The next day was the 18th August, 1979 when the plaintiff signed the transfer. So the receipt, although dated 17th August, 1979 was, according to her own evidence, given, if given at all, on the 16th August, 1979. The plaintiff also interpolated in her narration that when her daughter refused to sell to Mr. Richards she went back to Richards and told him and having borrowed $800.00 from a conveniently unnamed source, returned it to him and he in turn "cancelled" the receipt and gave it back to her. Richard himself says that the plaintiff came back two days after she gave him the receipt and told him her daughter did not wish to sell and gave him back his $800.00 and took back the receipt. Thus by all accounts the receipt was no longer valid and back with the plaintiff by the 18th of August, 1979. Mr. Richards himself accepts that he was repaid within two days of the borrowing. This proves beyond doubt that the receipt is a complete fabrication by the plaintiff. I was struck by the newness of the receipt when I saw it in Court, but thought no more of it then. Further examination of the receipt has produced conclusive proof of it being a fabricated document - fabricated by the plaintiff and used by her in collusion with Albert Richards to try to convince this Court that the property was worth $36,00.00 in August, 1979. The receipt is dated 17th August, 1979 and bears on the reverse of it a ten cent stamp which on the face of it bears the date of printing as being 1980. I, however, took the precaution of ascertaining the official date of release for sale of these stamps. This stamp was put on sale from 7th January, 1980 by Statutory Instrument No. 4 of 1980. I take this to mean that the receipt "E.W. 1" produced by the plaintiff was fabricated at some date subsequent to the 7th January, 1980.

As I have already stated, I would have had no difficulty in saying I believed the defendants if the plaintiff's Counsel had not raised the unlikelihood of the plaintiff selling her only asset at what he sought to show as being so far less than the value of it. The defendants were cross-examined at great length and each was made to go over the evidence two or three times. I did not wish to intervene in the cross-examination and may thus have permitted rather harsh treatment of the second defendant who was at an advanced stage of pregnancy. I am not sorry I did so because she came through the cross examination most convincingly. In spite of repeated questioning on the same matters both defendants gave their evidence with very negligible contradictions. I think I would have given judgment for the defendants even without this evidence of fabrication of an important document.

The fabrication of the receipt was for the sole purpose of convincing this Court that the property was worth much more than the sale price stated in the transfer form and was, therefore, further evidence in support of the plaintiff's allegation that she was defrauded by the defendants; without that receipt the only evidence of any fraud on the part of the defendants, is the evidence of the plaintiff. The plaintiff's evidence is so closely connected to the fabricated receipt that it must be tainted by it. In my considered opinion the only evidence of fraud before this Court is the fraud of the plaintiff in fabricating a document to support her false case.

I dismiss the plaintiff's claim with costs including, in view of her attempted deception, the costs of the 13th May, 1982 which was originally given to the plaintiff. I am sorry, I cannot give the defendants more relief in this false case filed against them because I feel costs are far in excess of anything they can recover from the plaintiff.

I think it only fair to also inform the parties that I am referring this matter to the Director, of Public Prosecutions for any action he may consider necessary.