Dalfel Weir v Beverly Tree

 
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[2014] JMCA Civ 12

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Panton P

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

CIVIL APPEAL NO 37/2011

Between
Dalfel Weir
Appellant
and
Beverly Tree
Respondent

Dr Leighton Jackson for the appellant

Mrs Judith Cooper Batchelor instructed by Chambers Bunny & Steer for the respondent

MATRIMONIAL PROPERTY - Ownership - Application for declaration of sole beneficial ownership of property - Property (Rights of Spouses) Act

Panton P
1

I have read the draft reasons for judgment of my learned sister Phillips JA. I agree with her reasoning and conclusion and have nothing to add.

Phillips JA
2

This is an appeal relating to the vexed issue of dividing matrimonial property under the Property (Rights of Spouses) Act (“PROSA”). The appellant is seeking to challenge the order of D O McIntosh J made on the appellant's fixed date claim in which he had sought, among other things, the following reliefs:

1. a declaration that he was solely beneficially entitled to the parcel of land numbered lot 9 on the subdivision plan of property located at Norwich in Portland being part of lands registered at Volume 899 Folio 23 of the Register Book of Titles (the land) and containing a dwelling house constructed thereon. The appellant claimed to be entitled to this portion of land by virtue of a contractual licence given to him by the respondent, she having promised him that she intended to give him the lot and encouraged him to expend significant sums to build a dwelling house on the land;

2. in the alternative, a declaration that both he and the respondent were beneficially entitled pursuant to section 6 of PROSA to equal shares of the land and the dwelling house thereon as being the family home;

3. that he be granted the right of first refusal to buy the respondent's interest, if any, in the family home;

4. at the time of sale, a valuation report of the family home should be obtained from an agreed valuator by the parties or alternatively, from a valuator appointed by the court; and

5. the costs of transferring the title on the sale of lot 9 including the cost of the valuation report and survey, if any, be borne equally by the parties.

3

On 25 March 2010, after trial of the claim, McIntosh J gave judgment for the appellant in the sum of $1,300,000.00, being half the value of the dwelling house on the land according to the valuation report of DC Tavares and Finson Realty Ltd. This valuation was made pursuant to a court order made by Beckford J on 12 October 2009 in the absence of the appellant.

Background
4

The parties were married on 5 January 1987 in Jamaica. It is not clear from the evidence the date on which they met but the respondent, who is ordinarily resident in the United States of America, started visiting Jamaica in 1982, and went to Port Antonio in 1983. It was on one of those visits that she met the appellant, who is a Jamaican national. The respondent would visit Jamaica about three times for the year for a period of three to four weeks. There are not many areas of agreement between the parties and it may therefore be convenient to set out the evidence of each in relation to the acquisition and use of the property.

The appellant's evidence
5

The appellant's evidence was that the respondent had offered to buy him a car, but he had dissuaded her from doing so and had told her to buy land instead. He said that he and the respondent approached one Hamlet about land and that Hamlet had sourced lands which they both liked. He and the respondent had sought the services of an attorney-at-law together and had negotiated the price. The respondent told him that she would send the money so that he could ‘partake of the property’. The lands which comprised approximately 16.5 acres, were purchased before they were married and registered in the respondent's name only, but she told him that later her attorney would transfer the land into both their names. He stated that within a year of purchase he began living on lot 9, which comprised 6 acres, and he began ‘cutting it down’, farming it and set up a shack on it. He said he planted vegetables and seeds and when he sold the crops he used the money to keep on planting on the property. He stated also that he had sold lumber from the property although he had not planted any of the trees that he sold. The money received from the sale was used to pay young men to clear the land. The respondent, he said, had given him money to plant seeds and vegetables. He also indicated that he paid taxes for the land.

6

The appellant stated that he expended significant sums from his resources and constructed a dwelling house on lot 9, which became his home and their home when the respondent was in Jamaica. According to the appellant, he built the dwelling house in two phases. In the first phase, the house had stone at the base and board on top, while in the second phase he changed all the board on the structure into concrete. He had constructed the original structure sometime around 1987. The respondent moved out and in 1989 he started to build the concrete portion. When the concrete portion was added, it became a split level building. He stated that he tore down the board section which he termed the ‘cottage’ because it was ‘rotting down from chi chi’ and that the respondent never slept with him in the ‘new house’. In the first phase, he said, the respondent had given him some money which he used to contribute towards buying zinc and lumber. Prior to the construction of the dwelling house, the respondent would stay in hotels. Thereafter, she stayed at the house. However, towards the end of their relationship, she stayed at hotels complaining that the house did not have enough amenities for her comfort. The relationship, he said, finally broke down in 2000.

7

He stated that he gave the surveyor instructions for the subdivision of the property in the respondent's absence, but she paid the cost of the survey. Prior to the subdivision, he farmed the entire property and planted permanent trees and crops, but after the subdivision he continued to plant the trees and crops on lot 9 only. When it was put to him in cross-examination that he was interested in the respondent for her money, he denied this stating that he wanted her for her land. He stated also that he was claiming lot 9 as he had lived on it ‘ever since’. He did state however, that when he had built the new house he had built it for both of them.

The respondent's evidence
8

The respondent stated that she and the appellant met after she decided to purchase the land. She denied any participation of the appellant in identifying the land or negotiating the price. She, however, admitted that she had discussed buying the land with the appellant. She stated that she started searching for land to purchase in 1985 and it was a taxi-driver, ‘Hamlet Johnson’ who had told her about the property which she decided to purchase. She sent US$3000.00 to the ‘executor of land’ and it was agreed that she would pay the outstanding amount of the purchase price by September 1986. However, she was given early possession in April 1986 and began clearing the land. She agreed in cross-examination that she had advised the appellant to take possession of the land. She denied offering to purchase a car for the appellant and stated that when she paid for the land, she and the appellant had a visiting relationship. She denied telling the appellant that she would transfer the property into both their names and stated that she had hired the appellant and two other men to clear the land.

9

She stated that the appellant agreed to assist her to produce vegetables on the land and she gave him money to buy crops to cultivate and animals to rear. He never planted crops on most of the land but farmed only about 30% of it. She said she never received any money from the sale of anything from the property. The respondent stated that the marital relationship began to deteriorate in 1992 and in that year she stopped funding everything. By 1993 they were separated. She stated that it was after the breakdown of the relationship in 1993 that she told the appellant to pay the taxes for the land as he was benefitting. However, she had had to repay persons from whom he had borrowed the money to pay the taxes. Although the respondent admitted that the appellant had shown the surveyor where the boundaries were, she denied that he was the one who gave the surveyor instructions. She stated that she met the surveyor and gave him the instructions.

10

With respect to the construction of the house, it was the respondent's evidence that the original structure had a stone base and the rest was board. She stated that she had paid the appellant for his labour on the structure which she regarded as her cottage and that most of the lumber on the land was used to build it. She denied that the concrete structure was started in 1989 but stated that the ‘blocking up’ never began until sometime in 1990 when the appellant started ‘blocking up’ under the cottage saying that he wanted storage space. She stated that she had not slept in the house after 1996 and at that time renovation was not underway. The house was, however, in a serious state of deterioration due to a lack of maintenance. She stated that the house remained board until 2002. According to the respondent, years after they separated, the appellant had torn down...

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