Kelly et Al v Richardson et Al

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Moe, J.
• Judgment Date: 03 September 1981
• Docket Number: No. 9 of 1981
• Date: 03 September 1981

Supreme Court

Moe, J.

No. 9 of 1981

Kelly et al

and

Richardson et al

Mr. Glen Godfrey for the plaintiffs

Mr. M.C.E. Young for the defendants

Real Property - Possession — Defendant claiming right to possession based on alleged understanding with plaintiff's deceased father — Whether defendant had licence coupled with equity — Defendant to be compensated for expenditure — Plaintiff to have possession.

Moe, J.

1 The plaintiffs in these proceedings are the daughters of one Orma Kelly now deceased. The first defendant lived with the said Orma Kelly in a common law union from around the year 1960. On the 28 ^th December 1971 Mrs. Kelly obtained from the Government of Belize a lease for 75 years of Lot No. 5382 on 13 ^th Street, Kings Park, Belize City, one condition of which was the “the lessee shall construct a building of a minimum value of $6,000.00 on the lot within 12 months of the date of the lease”. In order to build this house, Mrs. Kelly obtained from Reconstruction and Development Corporation in 1972 two loans of $4,000.00 and $700.00. The house was built and finished in 1972.

2 Thereafter Mrs. Kelly, her children including the plaintiffs, the first defendant and some of his children lived in the lower flat of the house. The upper flat was rented at a rental of $40.00 per month. The first defendant moved out of the house sometime in 1977 and Mrs. Kelly died in January 1978. The plaintiffs moved out of the lower flat in March 1978 and the defendants moved in the said day. The plaintiffs moved into the upper flat in October 1978 and on 15 ^th September 1979 the plaintiffs obtained letters of administration in respect of the estate of Mrs. Kelly. Clause 6 of the lease specifically states that “lessee” includes the administrators of the lessee. On 29 ^th October 1979 the plaintiffs assigned the said lot No. 5382 to themselves for the remainder of the term of the lease to hold it upon trust for themselves and the other children of Mrs. Kelly. The plaintiff have demanded since 1979 both orally and through letters from an attorney-at-law that the defendants vacate the lower flat of the house. The defendants refuse to give up possession.

3 The plaintiffs by these proceedings now claim (1) possession of the lower flat of the house in which the defendants now live, (2) damages and (3) mesne profits. On the other hand the first defendant alleged (i) the premises referred to is the property of the Government of Belize and was leased to Mrs. Kelly; (ii) that he has expended money, time and labour for the erection of the house on the understanding with Mrs. Kelly that the premises would be owned jointly by them upon her acquisition of title from the Government of Belize.

4 He therefore says that the successors in title of Mrs. Kelly are estopped from recovering the premises from him.

5 The first plaintiff in his evidence maintained that the first defendant did not work on the construction of the house. That he made arrangements with the contractor but did not help with the building of the house. He did not contribute any money for the building of the house and he did not give any money towards payment of the loan. The defendant's evidence was that he paid $35.00 for the plan of the house, used to check on the building of the house, bought the lumber for and built the bath and toilet, built the cupboards to the house, and after Mrs. Kelly death, he made payments towards the loan until the Corporation told him not to pay anymore. This evidence of the defendant I easily accepted. I also accepted the evidence of the builder Mr. Eric Rhaburn that the defendant made the payments to him for his skill and labour and that of his helpers. This added great weight to the evidence that the defendant was in charge of the matter of having the house constructed.

6 The defendant also said that he used to give Mrs. Kelly money to help pay the loan after construction of the house right until she died. The evidence, particularly the receipts from the Reconstruction and Development Corporation, show that the repayment of the loan was at about $60.00 per month paid invariably at the end of the month. The defendant said that he used to give Mrs. Kelly $65.00 per week out of his wages of $100.0 per week and then when the time came to pay the loan he gave her money to help pay the loan. According to him he gave $40.00 for this purpose. I found it difficult to accept that he paid out in the amounts as he said. It is clear from the evidence that Mrs. Kelly got money...