Andra Jackson v Valentine Davidson
| Jurisdiction | Jamaica |
| Judge | L. Pusey J |
| Judgment Date | 27 October 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2012HCV04738 |
[2023] JMSC Civ 160
CLAIM NO. 2012HCV04738
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Civil Procedure — Whether claim can proceed where the enactment upon which the claim is premised is not stated — Whether Claimant's statement of case is sufficient — Prejudice — Overriding Objective of the Court — Exclusion of Hearsay Document — Civil Procedure Rules 1.1; 8.7; 8.8; 8.9; 26.9 and 29.1
Family Law — Division of Property — Whether claim was made in time — Whether the Parties were in a common — law relationship — Whether the parties separated in 2007 or 2011 — Whether claim is to proceed under section 6 or 14 of PROSA — Nature and Tenure of Claim — Whether Claimant is entitled to 50% in the property — Monetary Contribution of Spouses — Indirect and Non — Monetary Contribution of Spouses — Lump Sum Payment — Credibility of the Parties — Documentary Evidence — Property (Rights of Spouses) Act sections 2; 6; 7; 11; 13 and 14
Mr. Bertram Anderson appeared for the Claimant
Mr. David Clarke appeared for the Defendant
This matter came for hearing on the 1 st and 2 nd of December 2015. At the trial, the Court had embarked on a pilot project with audio recording equipment in which matters were tried without the usual note taking by the judge, as the Parties would rely on an audio recording system. Aspects of the project did not live up to expectations which contributed to the inordinate delay in the delivery of this judgment. Additional unforeseen circumstances such as the theft of my personal laptop created further challenges. Therefore, the Court would like to apologize for the part it played in the delayed delivery of this judgment.
The Court would however wish to indicate that it had sufficient material to decide upon this matter and would like to thank Counsel for their filing of written submissions which aided in the completion of this judgment.
This is a Claim for the division of property, all that parcel of unregistered land situated at Norris District, Yallahs in the parish of Saint Thomas, Jamaica (“the Property”). The Claim was filed by Miss Andra Jackson (“the Claimant”) against Mr. Valentine Davidson (“the Defendant”) on the 29 th day of August 2012. The Claimant sought the following orders:
-
(a) Declaration that the Claimant is entitled to fifty percent (50%) of the Property;
-
(b) Valuation to be done on the Property, cost to be borne equally by the Parties;
-
(c) An Order for sale of the Property and the proceeds divided in equal share; or in the alternative the Defendant compensate the Claimant for her interest in the Property;
-
(d) Costs; and
-
(e) Any order for any other relief which the Court deems fit.
The Defendant challenges the Claim for the division of the Property on the basis that:
-
(a) The Claimant failed to state which laws her application was grounded in;
-
(b) The Claimant is statute barred from relying on the Property (Rights of Spouses) Act (“ PROSA”); and
-
(c) It would be prejudicial at this stage to divide the Property.
The undisputed facts of the case are that the Parties started a relationship in approximately 1989 which produced three (3) children. The Parties moved into the Property in 1993. The Parties' relationship has been rocky for quite some time resulting in them seeking mediation and/or counselling. The result of the mediation and/or counselling is that the Parties and their children agreed, among other things, to live in the house together, not harass each other and to conduct themselves in a civil manner (see: exhibits 1 and 2). At the time of the trial, the Parties were living in separate sections of the Property.
These matters are essentially not in contention between the Parties however, not unexpectedly due to the nature of these matters, there are several factual variances between the Parties. The Court will only highlight those variances which shed light on the salient issues before it. Therefore, the Court will not detail the evidence of the Parties in toto, but has summarized the significant points of each Parties evidence accordingly.
Miss Andra Jackson's evidence was found in the pleadings of the originating documents and her witness statement filed the 31 st day of January 2014 which was accepted as her evidence-in-chief. Miss Jackson's evidence is essentially that she and the Defendant, Mr. Valentine Davidson, has been in a common-law relationship for approximately twenty-three (23) years. The Claimant indicated that early on in the relationship, she and the Defendant resided with his mother for approximately five (5) years before moving to the Property in 1993.
The Claimant avers that in 1993, she and the Defendant purchased unregistered land and built a two (2) bedroom house with all the usual amenities. The Claimant further avers that over the years she and the Defendant contributed to the upkeep and payment of bills for the Property. The Claimant's evidence also indicates that she and the Defendant lived at the property together and raised their children there. Further, that there was a continuous cohabiting relationship between herself and the Defendant since approximately 1989 until their separation in 2011 despite their continuous arguments.
Mr. Valentine Davidson's evidence was found in his Defence, his witness statement filed the 31 st day of January 2014 and the witness statements of Miss Opal Davidson and Miss Julet Davidson filed the 30 th day of January 2014. Mr. Davidson's evidence was such that he indicates that while the Parties were in a relationship since approximately 1989, they lived separately and visited each other at their respective homes in Saint Thomas.
The Defendant avers that the visiting union was inconvenient and this motivated him to obtain a “piece of property” which was gifted to him by Mr. Kenneth Campbell on or about the 5 th day of October 1992, this same property is the subject of this Claim. The Defendant's evidence suggests that the Defendant solely built the house on the vacant lot gifted to him by Mr. Kenneth Daley as the Claimant was unemployed at the time. Further, he received help, in the form of labour, from his friends and sister and material from the block factory that he was employed to at the time of constructing the Property.
The Parties moved into the Property in 1993 and the Defendant continued building on the Property, with no assistance from the Claimant, until it was a two (2) bedroom house with the usual amenities. The Defendant avers that he and the Claimant separated twice, briefly in 2002 until they resumed their relationship in 2003 and finally, in 2007 with no likelihood of reconciliation.
Mr. Betram Anderson, Counsel for the Claimant, admits that at the genesis of the Claim and at the time when orders were made to correct certain defects, there was no specific pleading by the Claimant that the Claim was being brought pursuant to PROSA. Counsel submits however, that based on the nature of the Claim, the Court should make their decision using PROSA as the authority for which they rely. Further, that PROSA is the main, and often the only authority, used in the division of property between spouses. Counsel placed reliance on the cases of Wilson- Malcom v Malcom [2013] JMSC Civ 161 and Brown v Brown [2010] JMCA Civ 12 which established that PROSA is the authority which must be used to decide all matters relating to the division of property between spouses.
Counsel further submitted that there is no doubt that the Parties satisfy the definition of a spouse under section 2(1) of PROSA as both Parties were single and living together as if they were husband and wife for a period of not less than five (5) years. Counsel submitted that in the alternative, if the Parties were together for the period that the Defendant asserts, it would equal to a cumulative period of thirteen (13) years which makes any refutation by the Defendant, that no common-law relationship existed, immaterial. Further, that the Property is to be considered as the family home as it fell within the definition for family home as outlined at section 2(1) of PROSA.
It was Counsel's submission that the Claimant contributed significantly to the building and maintenance of the Property pursuant to section 14(3) of PROSA. This contribution, counsel submits, would arise in favour of the Claimant as a resulting trust since she paid all or part of the purchase price, did housekeeping duties and/or would spend her money on general household expenses. This, Counsel argued, would make the Claimant eligible for one-half of the said property pursuant to section 6(1)(a) of the PROSA.
Counsel argued further that there were indirect contributions of the Claimant such as contributing to the maintenance of the Property and caring for the children. Counsel submits that the Court ought to make an assessment of these contributions, along with the contribution of the Defendant to determine whether the contributions of the Claimant is substantial.
Reliance was placed on the cases of Falconer v Falconer [1970] 3 All ER 449 and Burns v Burns [1984] 1 All ER 244 where the Court ruled that where a Claimant cannot prove their involvement in the substantial improvement to and acquisition or building of the property then they will have no entitlement to any beneficial interest in the property. However, Counsel argued there is an alternative approach that may be taken to accommodate persons who may not be in a position to prove their contribution, and this is through assessing the indirect contributions of the Claimant as was espoused in the case of Hussey v Palmer [1972] 1 WLR 1286 where it was indicated that a trust may be imposed whenever “ justice...
To continue reading
Request your trial