Wed | Sep 20, 2017

Man sues friend for Olint cash, loses

Published:Sunday | June 7, 2015 | 6:00 AMMcPherse Thompson
The Supreme Court buildin at King Street, Kingston.

Jamaica's Supreme Court has tossed a lawsuit filed by a businessman against his friend whom he had asked to invest US$30,000 in the failed investment scheme Olint Corporation eight years ago. The sum was then the equivalent of $2 million; today it is worth $3.5 million in local currency.

Wilbert Howard had hoped to recover his lost investment from his friend of 30 years. He claimed that his request to Conroy Forte Sr to invest the funds in Olint was in effect a binding contract between them.

However, Acting Supreme Court Justice AudrÈ Lindo said Howard had failed to prove his case, nor had he established that Forte had caused him to invest in the scheme.

Judge Lindo's ruling was handed down following conclusion of the trial in April, during which Forte maintained under questioning that he was an investor and not a trader in Olint.

Forte and Howard entered into a written agreement in May 2007 for Forte to invest the US$30,000 in Olint on his friend's behalf and Howard wired the funds to Forte's Wachovia Bank account for the investment.

breach of contract

Olint was one of the most popular though unapproved investment schemes that proliferated at the time. It eventually collapsed and Howard demanded that Forte return his money, which did not happen. The businessman later sued Forte for breach of contract and sought repayment of the US$30,000 with interest.

"Risk to the investment is 20 per cent of deposit as stated in Olint Corporation, returns from investment shall be deposited monthly unless otherwise instructed in my BNS bank account or hand delivered to me," Howard said in his evidence to the court.

The businessman said he expected to be paid interest on a monthly basis, while the principal sum would remain until instructions were given for its withdrawal from Olint.

Howard's evidence was that he gave no instruction for the principal or any portion of the funds to be withdrawn, but that Forte had provided him with a statement of account which suggested that US$26,320.59 had been withdrawn leaving a balance of US$18,752.92, which he said would have been contrary to their agreement.

Under cross-examination, Howard said he knew that Forte was an investor in Olint; that before arriving at the agreement he did not consider depositing the money himself with Olint, nor make

an attempt to do so. He admitted to knowing Forte for "over 20 odd years" as a business acquaintance and entered into the agreement with him because he trusted him as a friend.

In addition, Howard ackno-wledged that on one occasion he was paid $80,000 in Jamaican currency on his instruction to Forte and that he received approximately $151,000 from Forte in relation to funeral expenses and car rental.

Howard also acknowledged that Forte provided him with a statement showing the breakdown of the investment and that he received payments from Forte between 2007 and 2008, even after Olint had crashed.

Forte in his testimony told the court that the men had been friends for more than 30 years and that Howard had tried several times to open an account with Olint, but later turned to him to do the investment. Forte said he accepted the funds as part of his account with Olint. He had been investing in the scheme since 2005.

He testified that Howard received his first payment "in the Jamaican equivalent of US$1,927.77 on June 5, 2007 and received several other payments of interest and repayment on the principal as instructed by him until December 2007 when Olint collapsed."

Forte said that one payment was made to Howard even after Olint crashed, and that there was a balance of about US$18,000 left in the scheme when it went under.

Judge Lindo said Howard failed to prove that Forte had been enriched by his funds, and that Forte appeared to have gained nothing from depositing the funds in his account at Olint.

She ruled that the pact between the friends fell short of being a binding and enforceable contract, saying Forte merely facilitated the investment of Howard's money in Olint.

The judge noted that a fiduciary relationship exists between two persons when one is under a duty to act for, or give advice for the benefit of another. It may arise also from close friendships or prior business dealings between parties, she said.

Lindo noted, however, that Howard had failed to establish the fiduciary link and was reluctant to admit evidence of a longstanding friendship with Forte.

She referred to a section of Howard's evidence which, in her view, pointed to the fact that the parties were indeed friends, "and I find as a fact that the claimant relied on the defendant as a friend to assist him in investing in Olint," Lindo ruled.

mcpherse.thompson@gleanerjm.com