Herbert Cockings v Grace Cockings

• Jurisdiction: Jamaica
• Judge: Dunbar-Green, J (Ag.)
• Judgment Date: 28 July 2014
• Neutral Citation: [2014] JMSC Civ 126
• Docket Number: CLAIM NO. 2011HCV06112
• Court: Supreme Court (Jamaica)
• Date: 28 July 2014

[2014] JMSC Civ. 126

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2011HCV06112

Between

Herbert Keith Cockings

Claimant

and

Grace Gertrude Cockings

Defendant

Mr. John Givans instructed by Antonica Coore for Claimant.

Mr. Samuel Smith for Defendant.

Matrimonial Property-claim for 50% share in house and land-Limitation of Actions Act-whether property rights extinguished — severance of joint-tenancy-effect of unregistered transfer of title-illegal purpose of transfer-whether illegality a bar to resulting trust.

CORAM: Dunbar-Green, J (Ag.)

1 By way of Fixed Date Claim Form filed 29th September 2011, the claimant/ancillary defendant, Herbert Cockings, seeks against the defendant/ancillary claimant, his former wife, Grace Gertrude Cockings, the following declarations and orders, inter-alia:

• (i) an order for severance of the joint tenancy in property known as 10 Sharrow Drive, Kingston 8, in the parish of St. Andrew (Sharrow) being Lot 2B and registered at Volume 1382 Folio 891 of Register Book of Titles and land part of Maverly called Queen Hill in the parish of St. Andrew registered at volume 1448 Folio 912 of the Register Book of Titles;

• (ii) a declaration that the claimant is entitled to a half interest in each of the said properties;

• (iii) an order that the properties be appraised by a reputable valuator to establish their current market values;

• (iv) an order that the properties be sold at their current market values and that the net proceeds of sale divided equally between the claimant and the defendant;

• (v) the defendant to have first option to purchase the claimant's half interest in both properties, such option to be exercised within 45 days of the date of the orders herein; and

• (vi) in the event the defendant fails to sign the Instrument of Transfer or any other relevant document so as to allow for effect to be given to the Court orders herein, the Registrar of the Supreme Court shall be empowered to sign the said Instrument of Transfer and relevant documents.

2 The defendant/ancillary claimant in Ancillary Claim filed 25 ^th October 2011 seeks the following declarations and orders, inter-alia:

• (i) a declaration that the Instrument of Transfer executed by the ancillary defendant in favour of the ancillary claimant dated 15 ^th January 1994 purporting to transfer all his interest and estate in the residence at Sharrow is valid and effective;

• (ii) further or in the alternative, a declaration that any interest or estate that the ancillary defendant may have had in the said residence has been extinguished, the ancillary claimant has acquired title by possession and is solely and exclusively entitled to the residence known as 10 Sharrow Drive; and

• (iii) a declaration that the ancillary claimant is solely and exclusively entitled to the property called the Queen Hill Lot in that all the interest and estate of the ancillary defendant in the said land has been extinguished, and the ancillary claimant has acquired title by exclusive and absolute possession thereof for in excess of twelve years.

3 The claimant/ancillary defendant (hereinafter referred to as the claimant) has relied on affidavits dated 27 ^th September 2011 and 16 ^th July 2012. In response, the defendant/ancillary claimant (hereinafter referred to as the defendant) has filed affidavits dated 24 ^th October 2011 and 18 ^th September 2012. The defendant also relied on Mr. Christopher Cocking's affidavit dated 17 ^th September 2012. All the affiants were cross-examined at the trial.

Factual Background

4 The facts are highly disputed and the parties have made several allegations against each other. I have had regard to all of these facts and disputes but will not rehearse each of them in this judgement as some of the issues amount to no more than minutiae. I will, however, set out in detail the more important facts, issues and arguments. The germane facts, as this Court sees them, and in some order of chronology, are as follows:

• (i) the parties met sometime around 1971 at Gaynstead High School where the claimant was a 22 year old teacher and the defendant a 17 year old student;

• (ii) they got married in 1973;

• (iii) their daughter, Kristie was born in 1974 and their son, Christopher, in 1977;

• (iv) by the mid 1970's, the parties had bought a house in Waterford, St. Catherine. The claimant was still a teacher and the defendant, a student at Mico College;

• (v) in 1979, the claimant left teaching and went to work at Life of Jamaica (LOJ) as a life underwriter. The defendant worked as a teacher at Maverley Primary School. The claimant earned $2500 monthly and the defendant $300.00 monthly;

• (vi) in 1983, the claimant resigned his job under questionable circumstances;

• (vii) in 1983 the Queen Hill Lot was purchased and the names of both parties entered on the title as joint tenants;

• (viii) in November, 1984 the parties divorced. The proceedings were brought in the United States of America (USA) by the claimant. He had taken up residence there as an illegal alien subsequent to his resignation from LOJ in 1983.

• (ix) the defendant remained in Jamaica until early 1985 when she went to live in the USA;

• (x) on 1 ^st May, 1985 the defendant married Thomas Edwards Hunter, an American citizen;

• (xi) in 1985 the claimant also got married, divorced and then remarried. On 14 ^th March, 1985 he married Alisa Gaskin, an American citizen. He divorced her on 29 ^th July 1985, and on 9 ^th December 1985 married another American citizen, Tina Louise Elya;

• (xii) in 1986, the claimant obtained resident alien status (a Green Card). He travelled to Jamaica, on occasion, from 1986 up to January 1987;

• (xiii) between 1986 and 1987, the Sharrow residence was bought and the family moved in sometime in January 1987, shortly after which the claimant returned to the USA;

• (xiv) the title for the Sharrow residence carries the names of the parties as joint tenants;

• (xv) in March, 1987, the claimant was arrested in the USA for drug trafficking and was imprisoned up to October 1989;

• (xvi) in April 1987, two mortgages were registered on the Sharrow title in favour of Victoria Mutual Building Society and Jamaica Citizens Bank. The parties' address for the mortgage was the same, 19 Ebenezer Avenue, New Haven, St. Andrew, Jamaica;

• (xvii) in November 1987 the parties obtained a second mortgage from Victoria Mutual Building Society. They used the same address for this mortgage, 1805 W. Blue Heron Boulevard, Apartment H201, Riviera Beach, Florida 32404. The mortgage instrument also refers to the mortgagors as ‘Herbert Keith Cockings and Grace Gertrude, his wife’;

• (xviii) between October 1989 (date of first release from prison) and 1996 the claimant did not visit Jamaica;

• (xix) sometime in or around 1990 the Waterford property was sold;

• (xx) in January 1994, the claimant signed an Instrument of Transfer whereby he transferred his interest in the Sharrow residence to the defendant;

• (xxi) in summer 1996, the claimant was again arrested in the USA for drug-related offences and imprisoned until 2003;

• (xxii) in 2003, the claimant was deported to Jamaica. He was received at the Central Police Station by the defendant and taken to the Sharrow property where he still resides;

• (xxiii) in April 2004, the claimant lodged a caveat, as joint-owner, against the Sharrow property;

• (xxiv) in April 2004, the claimant also executed a revocation of Power of Attorney which he had purportedly given to the defendant in 1994 at about the time he had executed the Instrument of Transfer.

• (xxv) in November 2004, both parties obtained a loan from Jamaica National Building Society (JNBS) for the purpose of carrying out repairs to the roof of the Sharrow residence;

• (xxvi) in 2005, the defendant filed an application in the Supreme Court for rectification of the record in relation to the Queen Hill property. This was consequent on that property being transferred to purchasers in pursuance of a fraudulent transaction which did not involve either party;

• (xxvii) in relation to that 2005 action, the Fixed Date Claim Form, signed by the defendant and dated 21 ^st October 2005, sought Orders including ‘That the transfer registered be cancelled, and that Herbert Keith Cockings and Grace Gertrude Cockings be restored as the registered owners of the property’. The defendant's supporting affidavit, at paragraph 2 stated, ‘My husband and I are joint tenant owners of all that parcel of land being lot 106 Queen Hill…’; and

• (xxviii) on December 2009 the parties wrote a letter to JNBS requesting consent to add their children's names to the Sharrow title, as Joint-tenants. The letter stated, inter-alia, ‘We, the undersigned Herbert Keith Cockings and Grace Gertrude Cockings, joint-owners of 10 Sharrow Drive, Kingston 8 (volume number 1051 and folio number 919) wish to advise you that we wish to add our children's names, Kristy Ann-Marie Cockings and Christopher St. George Cockings, to the title as joint tenants…’. The letter was signed by both parties.

Evidence in Dispute

5 The disputed facts, allegations and counter-allegations are as follows.

Claimant's Version

6 The parties decided to divorce in 1984 to further their plan to become American citizens. He said they both agreed that consequent on their divorce they would each marry an American citizen in what is commonly referred to as a ‘business marriage’ for the sole purpose of acquiring a ‘green card’ and ultimately US citizenship. The events which followed were in fulfillment of that plan. Both parties, despite marrying American citizens, remained in an intimate relationship until sometime after his return to Jamaica in 2003.

7 The claimant deposed that subsequent to the parties' divorce in 1984, the...