The
plaintiff instituted proceedings against the defendant for payment of the sums
of US$2,000= being money paid to the defendant towards the purchase of Stand
574 Juru Growth Point and US$2,000= for improvements effected on that property.
In her
declaration, she averred that the parties had entered into a written agreement
about December 2008 in terms of which she purchased Stand 574 Juru Growth Point
for US$4,500= which was to be paid by a deposit of $2,000= with the balance of
$2,500= being paid by March 2009.
The
plaintiff further averred that, in breach of the Agreement, the defendant
increased the purchase price to $9,000=, even before the balance in terms of
the Agreement became due, thereby terminating the Agreement. Meanwhile, in
pursuance of the Agreement, the plaintiff had taken occupation of Stand 574
Juru Growth Point where a house had been constructed and installed electricity,
plastered part of the cottage and constructed a blair toilet at a cost of $2,000=
which she claimed from the defendant.
The
defendant contested the claim stating in her plea, inter alia,
that the Agreement was illegal as the purchase price was to be paid in United
States dollars without the authority of monetary authorities, that the consent
of the local authority had not been secured and that the plaintiff should have
sued her mother the beneficiary of the Agreement.
She,
however, tendered payment of US$2,000= paid towards the purchase price averring
that she had cancelled the Agreement.
At
the pre-trial conference held before a judge, the issues were agreed as;-
1.
Whether or not the plaintiff is entitled to claim from the defendant a refund
of the purchase price and the value of improvements on the property in dispute,
if so, what amounts are due to her.
2.
Whether or not the winner is entitled to costs on the attorney and client
scale.
At
the trial, it was common cause that the defendant had refused the sum of US$2,000=
paid towards the purchase price and this was done in November 2012. The only
outstanding issues were, therefore, the claim for improvements and the costs of
suit.
The
plaintiff testified that when she took occupation of the house in January 2009,
it was in terms of the agreement between the parties and she immediately
installed electricity at the house at a total cost of $1,380=. She also built a
blair toilet at a cost of $350=, had the cottage plastered at a cost of $150=
and also installed burglar bars for $150=.
She
was therefore claiming $2,000= from the defendant.
She
did not explain why only that amount was being claimed when her figures add up
to $2,030=. She only produced a breakdown of the claim but could not produce
any receipt or invoice to support her claim.
Asked
by the defendant why she was claiming $2,000= from the defendant when she had
accepted an offer of $1,100= from the new purchaser of Stand 574 Juru Growth
Point as compensation for her improvements, she mumbled something to the effect
that she has a price for the court and a different price for the new purchaser
because with the latter they negotiated using current prices for building
material. She maintained that she was pursuing her claim against the defendant
because the new buyer had not paid for the improvements although he had
promised to.
I
am not satisfied that the plaintiff has made a good case for the claim of $2,000=
for the improvements. If, indeed, she expended the sums set out in her
evidence, she would have no difficulty in producing receipts and invoices to
support her claim. To say that she has the receipts somewhere but was unable to
bring them to court is simply disingenuous.
The
defendant said that the plaintiff indeed effected the improvements she set out
but was unaware of the value of these improvements. She, however, maintained
that the value should be around $1,100= because that is the amount accepted by
the plaintiff from the new purchaser after an inspection of the improvements.
I
agree.
It
occurs to me that the plaintiff has withheld the receipts and invoices for the
improvements in order to overstate her claim. It is also absurd to suggest that
there is a figure for the court and another for the new purchaser. Although the
new purchaser was not called to testify, it is common cause that he agreed that
the improvements are worth $1,100= and is prepared to pay that amount. To me,
the unnamed new purchaser is a reliable barometer with which to measure the
value of the improvements. After all, he is an independent third party not
tainted by the dust of the contest between the current antagonists.
I
therefore conclude that the plaintiff is entitled to US$1,100= for the
improvements.
In
the result, it is ordered that;-
1. Judgment
be and is hereby entered in favour of the plaintiff against the defendant in
the sum US$1,100= for the improvements effected on Stand 574 Juru Growth Point.
2. Interest on that sum of US$1,100= at the rate
of 5% per annum from the date of summons to date of payment.
