Abraham (Calvin Lenden) v Virginia Williams

• Jurisdiction: Jamaica
• Judge: SYKES J.
• Judgment Date: 02 October 2008
• Judgment citation (vLex): [2008] 10 JJC 0201
• Court: Supreme Court (Jamaica)
• Date: 02 October 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

CLAIM NO 2005 HCV 01779

BETWEEN

CALVIN LENDEN ABRAHAMS

CLAIMANT

AND

VIRGINIA WILLIAMS

DEFENDANT

IN CHAMBERS

Seymour G. Stewart for the claimant

Barrington Frankson for the defendant

BENEFICIAL INTEREST IN PROPERTY — DETERMINATION OF INTEREST

REAL PROPERTY - Beneficial interest in property - Determination of interest - Declaration of interest by court - Joint tenancy - Trust principles

SYKES J

1 . By way of a fixed date claim form Mr. Calvin Abrahams is claiming a beneficial interest in property registered at volume 1184 folio 589 of the Register Book of Titles. When the claim form was filed he sought:

• a . a declaration that he is the sole legal and beneficial owner of the disputed property;

• b . a declaration that the defendant had no legal or beneficial interest in the disputed property;

• c . a declaration that the defendant held the land on trust for him;

• d . an order that the legal interest be transferred to him.

2 . The claim has been amended and he is claiming only a half share.

The property

3 . The dispute arose in the following circumstances. Mr. Amos Williams, the father of Miss Virginia Williams, worked in the sugar industry for a number of years. He worked at the Bernard Lodge Sugar Estate located in the parish of St. Catherine. Some time around 1977, a number of institutions came together and developed a scheme to provide low cost housing for sugar workers. The institutions were the Sugar Industry Authority (SIA), the Sugar Industry Housing Limited (SIHL) and the National Housing Trust (NHT). Out of this arrangement came an agreement for sale between the SIHL on the one part, as vendor, and Mr. Amos Williams, Miss Virginia Williams and Mr. Theophilus Wilson, on the other part, as purchasers under which the purchasers were buying property located at lot 76, part of Reid's Pen and Congreve Park, registered at volume 1184 folio 589 of the Register Book of Titles. All three purchasers signed the agreement as did the vendor. The agreement for sale is undated.

4 . It is not clear what tenancy was in the view when the sale agreement was signed but suffice it to say when Miss Williams and Mr. Wilson were registered as the registered proprietors on January 7, 2005, they were registered as joint tenants. Mr. Amos Williams was still alive at this time and it is noteworthy that his name does not appear as a registered proprietor. Miss Williams explains by way of affidavit evidence that her father was living at another property and the property being purchased was intended by him to be for her and her son, Mr. Theophilus Wilson, that is to say, the father was making a gift to her and her son since there is no evidence that despite their names being on the sale agreement and the mortgage instrument that they were expected to undertake the payment of the mortgage at the time the property was acquired. Mr. Wilson died in December 2004. Thus Miss Williams is now entitled to the full beneficial and legal interest subject of course to the outcome of Mr. Abrahams' challenge to her current status.

5 . As is common with land purchases today, the property was purchased with the assistance of a mortgage. SIHL were the mortgagees. It was a vendor's mortgage. According to the mortgage instrument, the date of the advance was December 21, 1977 and the date for repayment was December 20, 2002. The sum lent was $14,450 at an initial interest rate of 10%. There is no clear evidence indicating what the monthly repayment was.

6 . It should be observed that Mr. Abrahams was not a party to the mortgage or the sale agreement. There is no evidence that the vendor knew of Mr. Abrahams. Mr. Williams, Miss Williams and Mr. Wilson were the only persons liable on the mortgage. What is clear is that, on the face of it, there was no intention to give Mr. Abrahams any beneficial interest in the property at the time of acquisition.

7 . Mr. Abrahams presents a different picture. According to Mr. Abrahams, he was told by Miss Williams that her father was offered the property but he could not pay for it and neither could she. There is no evidence concerning the financial health of Mr. Wilson and neither is there evidence of Mr. Abrahams having any discussion with him regarding the property. Mr. Abrahams' thesis is that in light of the impecuniosity of Mr. Williams and Miss Williams he under took to pay the mortgage in exchange for a proprietary interest. Mr. Abrahams' case is that he not only offered to repay the mortgage but he in fact repaid the entire mortgage. I now turn to the applicable law before examining the affidavit evidence and the evidence elicited in cross examination.

The applicable legal principles

8 . It is well established in Jamaica that whenever the court is called upon to determine the beneficial interest of parties in real property, the applicable law is the law of trust (see for example Harris v Harris (1982) 19 J.L.R. 319; Lynch v Lynch (1989) 26 J.L.R. 113; Edmonson v Edmonson (1992) 29 J.L.R. 234; Forrest v Forrest (1995) 48 W.I.R. 221 ).

9 . It is equally well established that the same principles apply to spouses, strangers, friends and business partners, though the inferences that one draws from the factual circumstances may differ since the court must have regard to the nature of the relationship between the parties and the context of the acquisition of the particular property over which the dispute has arisen in order to determine which inference is more likely in all the circumstances of the case before the court. In other words, the same basic facts in, for example, a marriage, may lead to a different inference from that drawn from a business relationship although the applicable legal principles are the same (see Pettitt v Pettitt [1970] A.C. 777 which has been accepted as stating the law applicable to Jamaica).

10 . It is also well established that the extent of the beneficial interest held is determined at the time of the acquisition even though the court is usually called upon to make this determination years after the property was acquired (see Lord UpJohn in Pettitt v Pettitt ). The fact that the determination is being made after the property is acquired in and of itself does not confer any power on the court to alter the beneficial interest of the parties unless the alteration comes about by well settled principles of law, that is, (a) an agreement that complies with all the requisite statutory formalities where that is required, as for example, section 4 of the Statute of Frauds, (b) a proprietary estoppel, or (c) by way of constructive trust. This well established principle has now been put in doubt by the higher courts in England and Wales, if not across the board, but certainly, at least, in relation to unmarried couples where the disputed property is the home in which they lived.

11 . The new found power of the courts to alter the beneficial interest of unmarried couples is found in cases decided by the Court of Appeal of England and Wales and the House of Lords, and in the case of married couples, the Judicial Committee of the Privy Council. In the case of Abbott v Abbott (2007) 70 W.I.R. 183, the Judicial Committee took the view that the England and Wales' Court of Appeal's decision in Oxley v Hiscock [2005] Fam 211 and the House of Lords case of Stack v Dowden [2007] 2 W.L.R. 831 expressed the law that is now applicable. It would seem, if I follow the logic of these three decisions, that this new found power applies, to unmarried ( Oxley and Stack ) and married couples (see Abbott ).

12 . One of the critical points in Oxley and Stack is that the time of acquisition no longer has a pivotal role to play in the determination of the beneficial interest. A necessary corollary of this is that the resulting trust analysis is now no longer applicable or at least not in the same way. What has happened is that the constructive trust is now seen as the best means of resolving property disputes between married or cohabiting couples. But this constructive trust does not seem to be a legitimate descendant or close relative of the constructive trust usually found in this area of law. The constructive trust usually inhabits this area of law can be described as arising in circumstances where the holder of the legal estate led the claimant to believe that he or she would have a proprietary interest in the property and the promise acted to his or her detriment based the promise made by the legal estate holder. Equity construes those facts (hence the name constructive trust) as giving rise to a proprietary interest in the property. Because of the danger of enforcing a trust for land without there being compliance with the statutory formalities, equity always required some onerous act on the part of the claimant. In English jurisprudence this type of trust is called the common intention constructive trust.

13 . It is true that often times the courts strain to find the elusive common intention used to ground these trusts. The judicial technique developed to deal with this problem of establishing the common intention, as just mentioned, is to look for evidence of onerous conduct on behalf of the claimant. Once there is evidence of onerous conduct, the next question is to find out the best explanation for the claimant's undertaking of such onerous conduct (see discussion by Nourse L.J. in Grant v Edward [1986] 3 W.L.R. 120, 121 – 122 ). It the explanation a promise as the claimant alleges? This technique had to be developed because the parties were usually at odds on whether there was such a common intention. If the court was going to find that there was a common intention then the onerous conduct was able to do double duty as (a) evidence that there must have been such an intention and also as (b) evidence of acting on the...