Sean Greaves v Calvin Chung

• Jurisdiction: Jamaica
• Judge: Thompson-James, J.
• Judgment Date: 18 June 2020
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2014HCV02675
• Date: 18 June 2020

[2019] JMSC Civ 118

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2014HCV02675

Between

Sean Greaves

1 ^st Claimant

and

Sean Greaves

(Administrator with will annexed of the estate of Janneth Chung, deceased)

2 ^nd Claimant

and

Calvin Chung

Defendant

Mr. Jaleel Dabdoub and Mrs. Karen Dabdoub instructed by Dabdoub, Dabdoub & Co. for the Claimants

Mr. Chukwuemeka Cameron instructed by Carolyn Reid & Co. for the Defendant

Real Property — Civil Procedure Rules 10.5, 10.7 — No case submission — Joint tenancy — Severance of joint tenancy — Requirements to sever joint tenancy — whether claimant has made out a prima facie case — Whether joint tenancy severed by incomplete transfer

IN OPEN COURT

Thompson-James, J.

INTRODUCTION

1 The trial of this matter involves amongst others whether a joint tenancy held by the defendant and the claimant's deceased mother has been severed thereby allowing her interest to pass to the claimant. At the end of the claimant's case counsel for the defendant made a no case submission. This submission was made on the basis that the claimant had failed to make out any of the grounds pleaded in the Fixed Date Claim Form. He elected to rest on his submissions. The manner in which the no case submission was made and after the tribunal enquires which I will return to at a later time show that counsel had no intention of calling any witnesses. Therefore, waiving the defendant's right to call evidence which effectively brought the trial to an end. Herein lies the court's decision on that submission, and consequently, the entire claim.

Background

2 The 1 ^st claimant, Sean Greaves, is the step-son of the defendant, Calvin Chung, and the administrator of the estate of his deceased mother Janneth Elizabeth Chung who died September 12, 2009.

3 At the time of her death, the deceased and the defendant were husband and wife. Both are registered as joint tenants of property (hereinafter referred to as the “subject property”) described as:

ALL THAT parcel of land known as NUMBER TWENTY-FIVE BURLINGTON AVENUE part of EASTWOOD PARK in the parish of SAINT ANDREW being the Lot Numbered TWENTY-TWO BLOCK “B” on the plan of Eastwood Park aforesaid deposited in the Office of Titles on the 7 ^th of June, 1945 of the shape dimensions and butting as appears by the Plan thereof hereunto annexed and being the land comprised in the Certificate of Title formerly registered at Volume 1159 Folio 284 and now being registered at Volume 1404 Folio 828 of the Register book of Titles.

4 August 30, 2009, Janneth Chung purported to transfer all her interest in the subject property to Mr. Greaves ‘in consideration of natural love and affection’, he being her ‘natural born son’. No stamp duty was paid and the transfer was not duly registered.

5 Mrs. Chung died, testate, September 12, 2009, having devised in her Last Will and Testament, dated September 5, 2008, all her interest in the subject property to her son Sean Greaves. Both executors named in the Will, having renounced their executorship, Mr. Greaves applied for and obtained letters of administration with will annexed in Mrs. Chung's estate from the Supreme Court of Jamaica March 18, 2013.

6 June 2, 2014, Mr. Greaves filed a Fixed Date Claim Form, seeking the following in respect of the subject property:

• “1. A declaration that the joint tenancy between the Respondent, Calvin Chung, and the deceased, Janneth Chung, has been severed as a result of the said deceased's transfer, effected by way of the Instrument of Transfer dated and signed the 30 ^th day of August 2009, to her son in consideration of the natural love and affection she holds for him of all her estate and interest in the said land…”; and

• 2. An order directing the Registrar of Titles to register the said Instrument of Transfer, transferring all the estate and interest in the subject property of the deceased to her son SEAN KIRKPATRICK GREAVES.” Mr. Greaves brought this action against Mr. Chung both in his personal capacity, as well as in the capacity of administrator of his mother's estate as the 2 ^nd claimant.

7 The defendant initially resisted the claim by way of his affidavit filed August 8, 2014, broadly on the grounds that:

• i. the deceased did not sign the transfer;

• ii. the deceased did not have the intention to part with her legal interest in the property;

• iii. the deceased did not give any instructions for a transfer to be prepared; and

• iv. if the court were to find that the transfer was in fact signed by the deceased then it would have been signed under duress;

8 At trial, the defendant objected to the admission of the transfer document into evidence. February 7, 2017, the court ruled that, the proper foundation having being laid, there was no basis in law to exclude it. The transfer was tendered into evidence as exhibit 4.

9 The court heard evidence from five witnesses on the claimant's case: Professor David Rowe (attorney-at-law, now deceased), Mrs. Beverly Simon, Ms. Danielle Shelly (Professor Rowe's assistant), Mr. Abraham Dabdoub (Mrs. Chung's attorney), and the claimant, Mr. Sean Greaves.

10 At trial, January 22, 2019, counsel for the defendant, conceded that the deceased did in fact sign the transfer, stating that, based on the evidence before the court, “the veracity of the deceased's signature on the transfer document was no longer in issue”, albeit he made clear that the voluntariness of the deceased affixing her signature was still a separate and live issue.

11 Mr. Cameron (referring to Mr. Dabdoub's evidence):

“Having read the expert report I do not think it is necessary to cross examine. The veracity of the witness is no longer in question as it relates to the signature of Mrs Janneth Chung on the transfer.”

He admits that she affixed her signature to the document.

12 January 23, 2019, at the close of the claimant's case, counsel for the defendant, Mr. Cameron made the bold assertion that, based on the evidence, the defendant had no case to answer. Having been put to his election by the court, Mr. Cameron elected to rest on his no case submission, thereby agreeing not to call any evidence in support of the defendant's case.

The Defendant's No-Case Submission

13 The no-case submission, contained in written submissions filed by the defendant on the same date, was made on the basis that the claimants have failed to prove that the joint tenancy has been severed. Particularly, it is submitted that “ the claimants have failed to prove that there was an irreversible and complete act of alienation of the property by Mrs. Chung”.

14 In that regard, although the defendant accepts as having been proved that Mrs. Chung executed a transfer with the intention of severing the joint tenancy for the purpose of her son being able to obtain her half interest in the property, it is contended that, such an intention, without more, is ‘neither irreversible or a complete act of alienation’ which are required by law for the tenancy to be severed.

15 Alternatively, and in any event, the defendant submits that the transfer was not signed in accordance with Jamaican law, in that, the transfer which was signed outside of the jurisdiction, was not notarized or witnessed by a member of the Jamaican Consulate as required by section 152 of the Registration of Titles Act (RTA).

16 The defendant relies on the case of Brynhild M. Gamble v Hazel Hankle (1990) 27 JLR 115 (Sc), and Wolfe J's approval therein of the principles set out in Williams v Hensman (1861) vol 70 E.R. 862 at 867 for the common law position in relation to the three ways in which a joint tenancy can be severed. On the basis of those principles, the way in which the claim has been pleaded and on the evidence before the court, it is submitted that only the first method is applicable for consideration, that is, an act by one of the joint owners ‘operating upon his own share’. This act, Mr. Cameron contends, must be an irreversible and complete act of alienation’, and in the circumstances, pursuant to sections 63 and 88 of the RTA, such an act of alienation could only occur upon registration of the transfer. In particular, he highlights the following:

• 63. When land has been brought under the operation of this Act… no instrument until registered in a manner herein provided shall be effectual to pass any estate or interest in such land… but upon such registration the estate or interest comprised in the instrument shall pass…

• 88. The proprietor of land… Upon the registration of the transfer, the estate and interest of the proprietor… shall pass to the transferee; and such transferee shall thereupon become the proprietor thereof… [Emphasis Supplied]

17 The decision of McDonald Bishop J in Bertram Cooper v Linford Coleman (unreported), Supreme Court, Jamaica, Claim No. 2004HCV01803, judgment delivered January 30, 2007, is relied on for that approach. Specifically, the defendant relies on her finding that:

“…falling short of an act of alienation or a similar unilateral act affecting the beneficial interest so as to preclude the operation of the right of survivorship, a unilateral act or declaration of intention, without more, even if communicated, is not enough to sever a joint tenancy..”.

18 Essentially, it is submitted that, the execution of a transfer without more is not an irreversible act of alienation, and, since the evidence the claimant has placed before the court is that the transfer was not registered, the legal interest in the land was not alienated from the deceased. ( National Import-Export Bank of Jamaica v Montego Bay Investment Company Limited [2017] JMSC Civ 67, at paragraph 68 is also relied on in support of this point.)

19 The defendant further relies on the Privy Council decision of Macedo v Stroud [1922] 2 A.C. 330, at page 337, for the proposition that “the execution of a transfer not having...