Dwayne Howell v Atoya Newman
| Jurisdiction | Jamaica |
| Judge | Fraser JA |
| Judgment Date | 01 June 2021 |
| Neutral Citation | [2021] JMCA App 14 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2021CV00024 |
| Year | 2021 |
| Court | Court of Appeal (Jamaica) |
IN THE COURT OF APPEAL
SUPREME COURT CIVIL APPEAL NO COA2021CV00024
APPLICATION NO COA2021APP00038
Kevin Williams instructed by Grant, Stewart, Phillips & Co for the applicant
Ruel Woolcock instructed by Ruel Woolcock & Co. for the respondent
This is an application for a stay of execution of the judgment of Barnaby J, the learned trial judge (‘LTJ’), delivered on 5 February 2021, (neutral citation number [2021] JMSC Civ 15). The stay is sought pending the hearing and determination of the appeal or until further order of the court. The application also requested an order that costs of the application be costs in the appeal. At the time of delivery of her judgment Barnaby J had granted a stay of its execution for 42 days. On 6 April 2021, I granted an interim stay of execution of the judgment, until the inter partes hearing of the application on 18 May 2021.
The details of the order appealed are:
“1. The Claimant and Defendant are equally entitled to the legal and beneficial interest in 23 Moreton-Park Terrace in the Parish of Saint Andrew which is now registered at Volume 956 Folio 69 of the Register Book of Titles (the Property).
2. Within thirty (30) days from the date of this Order, the Property shall be valued by D.C. Tavares & Finson Realty Limited and the cost of the valuation report borne equally by the parties.”
The six grounds of appeal set out in the notice of appeal filed 4 March 2021 are as follows:
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(A) “The learned trial judge, having found that the marriage was one of short duration, failed to further find that it would be unjust and unreasonable in circumstances of the case before her to apply the equal share rule adumbrated in section 6 of the Property (Rights of Spouses) Act (‘PROSA’) in respect of the parties’ respective share and interest in the property at 23 Moreton Park Terrace, Kingston 10.
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(B) The learned trial judge erred when she found that, notwithstanding the fact that the marriage was of short duration, the court could nonetheless look to evidence of the Claimant/Respondent's contribution to family life to reinforce the equal share rule, especially in circumstances where the Claimant/Respondent's case and the evidence before the court was that the Respondent made a direct and equal financial contribution to the property and not based on contribution to family life.
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(C) The learned judge erred as a matter of fact and law in her finding that the Respondent's contributions to family life were such that it could give her a greater share in the property above and beyond her direct financial contribution especially since there was little or no evidence before the court as to the Respondent's contribution to family life.
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(D) The learned trial judge erred in her finding that the parties' common intention, so far as being able to be ascertained, was not that each party would be entitled to a share in the property in proportion to their direct financial contribution to its acquisition.
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(E) The learned trial judge's finding that the Appellant's conduct contributed significantly to the early demise of the marriage so that there ought to be a finding that the equal share rule should apply is against the weight of the evidence and contrary to the law.
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(F) The learned trial judge's findings of fact and/or law, especially as it related to the finding that the parties were equally entitled to the property, were against the weight of the evidence and/or not consistent with the law.”
Pursuant to rule 2.11(1)(b) of the Court of Appeal Rules, a single judge of the court has the power to grant a stay of execution. This was confirmed by Phillips JA in the case of Joycelin Bailey v Durval Bailey [2016] JMCA App 8 at paragraph [39].
There is no dispute between the parties as to the principles applicable to the grant or refusal of a stay of execution. The decision whether or not to grant a stay is an exercise of discretion by the court, that will depend upon all the circumstances of the case (see Hammond Suddard Solicitors v Agrichem Agricultural Holdings Ltd [2001] EWCA Civ 1915). The first hurdle an applicant for a stay has to overcome is to establish that his appeal has a real prospect of success. If that is not the case, the court need go no further; the application should be refused (see Beverley Levy v Ken Sales Limited and Marketing Limited (unreported) Court of Appeal, Jamaica, Supreme Court Civil Appeal No 81/2005, Application No 146/2006, judgment delivered 22 February 2007 at page 8 and Jamalco (Clarendon Alumina Works) v Lunnette Dennie [2010] JMCA 25 at paragraph [45]).
Provided that first hurdle is successfully negotiated, the court then has to conduct a balancing exercise to determine the order which best accords with the interests of justice (see McDonald-Bishop JA (Ag) (as she then was) in Sagicor Bank Jamaica Limited (formerly known as RBTT Bank of Jamaica Ltd) v YP Seaton & Others [2015] JMCA App 18 at paragraph [80], quoting Morrison JA, (as he then was), in Channus Block and Marl Quarry Limited v Curlon Orlando Lawrence [2013] JMCA App 16 at paragraph [10], and Hammond Suddard Solicitors v Agrichem Agricultural Holdings Ltd).
This balancing exercise is particularly critical where there is a risk of harm to one party or another, whichever order is made. In such circumstance, the balancing of alternatives by the court is aimed at deciding which of them is less likely to produce injustice (see Phillips JA in Joycelin Bailey v Durval Bailey at paragraph [40] quoting Phillips LJ in Combi (Singapore Pte Ltd v Sriram and another [1997] EWCA 2162).
Though there is no dispute as to the principles that govern the exercise of the court's discretion to grant a stay, the parties disagree concerning whether the applicant has satisfied the conditions for the exercise of the court's discretion in his favour. He contends that he has, the respondent that he has not.
The marriage between the parties having broken down, the respondent applied for a declaration under the Property (Rights of Spouses) Act (‘PROSA’) that she was entitled to a 50% share of property located at 23 Moreton-Park Terrace in the parish of Saint Andrew and registered at Volume 956 Folio 69 of the Register Book of Titles (‘the property’). The applicant resisted the claim and sought a declaration that he was entitled to 85% and the respondent to a 15% share in the property.
Having perused the documents filed in this application, and the judgment of Barnaby J, the main issue for the determination of the trial court was: whether the parties are entitled to an equal share in the property, or the “equal share rule” under section 6 of PROSA should be varied pursuant to section 7 of PROSA, because, in the circumstances of this case, it would be unreasonable or unjust for each party to be entitled to one-half share?
The facts accepted by the LTJ were that the applicant was significantly older than the respondent when they met. They began a romantic relationship and, on the applicant's timeline, began cohabiting in 2012 at the applicant's home in Portmore. The applicant had a job and solely owned his house, while the respondent was a student pursuing Caribbean Examination Council certification.
The applicant subsequently sold his house and they moved into rented property. They purchased the property, their family home, in December 2013. On the title for the property they are registered as tenants in common in equal shares. The LTJ noted that the respondent offered what she had to assist in the purchase of the home, her National Housing Trust benefit, and paid the mortgage for that benefit up to October 2018. On the applicant's part he applied the proceeds of the sale of his house in Portmore to the acquisition of their home, as well as a mortgage he obtained from National Commercial Bank. Approximately three and a half years after acquiring the property, the parties got married on 24 June 2017. The marriage was short. The LTJ found that the parties separated in early 2018. They had one minor child who, at the time the claim was filed in February 2018, was three years old.
The LTJ outlined that the applicant's contention was that, pursuant to section 7 of PROSA, the equal share rule should be varied, as it would be unreasonable and unjust for the respondent to be awarded a 50% interest. The reasons advanced by the applicant for his contention were that the marriage was very short, the respondent had not given up her “life” or her future to take care of the household and children, and the applicant's direct financial input into the acquisition of the property, came from the sale of his house in Portmore, which he had solely owned 10 years prior to meeting the respondent.
The LTJ found at paragraph [4] of her judgment that the respondent should succeed in her claim and obtain the declaration sought. The LTJ stated that the respondent was:
“[E]qually entitled to the legal and beneficial interest in the Property which is the family home. Although the marriage between the parties was of short duration and the [respondent's] financial contribution to the acquisition of the Property was significantly less than the [applicant's], having regard to all the circumstances of the case, including the [applicant's] conduct in contributing to the breakdown of the marriage, it would not be unfair or unjust to apply the equal share rule to its division.”
Counsel for the applicant submitted that the respondent's case was predicated on the basis that the property was the family home and hence fixed with a statutory trust entitling her to 50%. Further, that she had...
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