Island Marketers Ltd et Al v Guerra

• Jurisdiction: Belize
• Judge: Shanks, J.
• Judgment Date: 24 February 2000
• Docket Number: 461 of 1999
• Court: High Court (Belize)
• Date: 24 February 2000

High Court

Shanks, J.

461 of 1999

Island Marketers Ltd. et al

and

Guerra

Appearances:

Mr. Phillip Zuniga for the plaintiff.

Mr. Kirk Anderson for the defendant.

Contract - Agreement to repay certain sums stolen by defendant — Misrepresentation — Defendant alleged that she had been misled as to the nature of the document she had signed — Non est factum — Whether the defendant had been induced to sign the document by a fraudulent misrepresentation on the part of the plaintiffs — Whether the defendant could rely on the plea of non est factum — Finding that thought the defendant may have been confused as to the nature of the document, confusion does not found the defence of fraudulent misrepresentation — Finding that the defendant had sufficient time to look at the document and appreciate that it was not a witness stated — Finding that the defence of non est factum failed since the defendant had been negligent in signing the document as she had done — Judgment for the plaintiff.

Shanks, J.

1 This is a claim for $110,000.00 based on an agreement signed by the defendant Ruth Guerra. She was formerly an employee of the Belize Yacht Club. The agreement is dated the 6th of October, 1998. The agreement says,

“I Ruth Guerra hereby acknowledge that I took without permission of Island Marketers Limited and Belize Yacht Club Limited a total sum of $110,000.00. In consideration of the companies forebearing to take legal civil action against me I hereby promise to pay the companies the sum of $100,000.00 on the 14th of October, 1998. The said sum will be paid by wire transfer to one of the companies account No. 5001382 of Belize Bank Limited. In addition I hereby promise the following:

• 1. to pay any further amounts as may as been found stolen by me after an examination or an audit of the companies account and to pay all accounting or audit fees occasioned by my stealing of the companies money.

• 2. to pay the companies legal fees of $10,000.00 resulting from my actions as aforementioned on the 14th of October, 1998.

• 3. to procure from my mother Ruth Rodriguez an adequate security or guarantee to the satisfaction of the companies for the payment of the above sums of money and all other monies found to have been stolen by me.

• 4. to give detailed information including dates and the names of persons involved of how I removed the money or monies in order to assist the companies to improve its accounting practices.

• 5. to leave my passport and travel documents with the companies which I agree will not be returned to me until after the payment of monies aforementioned.

• 6. if after examination or audit the sum found to have been stolen is less than what was paid on the 14th of October, the difference minus any other charges incurred will returned to an indicated family member of Mrs. Ruth Guerra.”

2 The agreement is signed by Ruth Guerra and also signed by a Commissioner of the Supreme Court, Martha Marina Leslie. In connection with the last provision which provides for re-payment of any difference I asked Mr. Zuniga at the end of the hearing whether there had been any audit report prepared showing the final sum stolen. He produced after the hearing a copy of such a report by Pannell Kerr Forster, which was addressed to Eddie-Halliday Jr. who was the General Manager of the plaintiff Companies, dated 13th October, 1998 which calculated the loss of the companies as coming to a total of $71,028.00. In these circumstances I would not intend to give judgment to the plaintiffs in any event for more than $81,028.00, including the $10,000.00 for legal fees. I was also alarmed to note that the plaintiffs had sought summary judgment for $110,000.00 earlier this year without drawing attention to the audit report based on an affidavit sworn by Mr. Halliday to whom the report had', been addressed. I will return to this matter later in the judgment.

3 Mrs. Guerra's main defence is that Mr. Halliday misled her as to the nature of the document she was signing and that she relied on him in signing it. It was accepted by Mr. Zuniga for the plaintiffs in argument that as a matter of law, if a misrepresentation was made and relied on, it would be no answer for his clients to prove that Ms. Guerra was negligent in signing the agreement without reading it.

4 I turn to the evidence. It is common ground that at the time she signed the document Ms. Guerra was in police custody charged with theft from her (employers and that she signed it at the San Pedro Airstrip where she was I being transported to Belize City. Her evidence was that Mr. Halliday had brought a bulky bundle of documents to the police station earlier in the day and told her that they were witness statements or “disclosures” which she must sign because it was police procedure. This she had done without reading them there being insufficient time to get through them before she had to leave for the clinic. Sergeant Alvarez of the Police had apparently also said that she should read and sign them. Then while she was at the airstrip waiting with a woman police officer to fly to the mainland, Mr. Halliday came alone with a further bundle of loose documents and told her there were more witness statements to be signed. She believed him when he said this and she signed the documents, again without...