Janet Mary Hanna v Steve Najeeb Hanna

• Jurisdiction: Jamaica
• Judge: Jarrett, J
• Judgment Date: 27 June 2023
• Court: Supreme Court (Jamaica)
• Year: 2023
• Docket Number: CLAIM NO. SU2020CV03544

Between

Janet Mary Hanna

Claimant

and

Steve Najeeb Hanna

Defendant

[2023] JMSC Civ. 111

CORAM:

Jarrett, J

CLAIM NO. SU2020CV03544

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Property adjustments under the Property (Rights of Spouses) Act 2004 (PROSA) — whether property is the family home — whether the equal share rule should be varied — other property and the application of factors under section 14(2) of PROSA — whether other property was a transfer by way of gift — allotment and issuing of shares — sections 38 (1), 38(5)(a) and (b) of the Companies Act — whether a claim to a percentage interest in shares and a share of profits in a limited liability company are sustainable without the company being a party to the claim.

Mr. Gordon Steer and Miss Abigail Heslop, instructed by Chambers, Bunny & Steer for the claimant

Mr. Kevin Williams instructed by Grant, Stewart, Phillips & Co. for the defendant

Introduction

1 The claimant and the defendant are wife and husband. They were married on September 20, 2003, and separated in November 2016. The marriage produced two children born on February 10, 2005, and December 6, 2007, respectively. This is the claimant's application under the Property (Rights of Spouses) Act 2004 (“ PROSA”) for a determination of the ownership of property between herself and the defendant. The defendant filed a notice of application for court orders seeking occupation rent should the court find that the claimant is entitled to an interest in property located at 1 Waterworks Crescent, Kingston 8. I will outline the claim, consider the relevant provisions of PROSA, and examine the declarations sought in relation to each of the properties in dispute. The defendant's notice of application for occupation rent, I will address after determining the other issues connected with the property located at 1 Waterworks Crescent, Kingston 8.

The claim

2 The claimant began her claim by filing a fixed date claim form on September 22, 2020, supported by an affidavit filed on the same day. She filed a further affidavit on May 28, 2021, in response to the affidavit filed by the defendant. The defendant filed two affidavits in response to the claim. One was filed on March 5, 2021, and the other on May 27, 2022, in response to the claimant's further affidavit. In her fixed date claim form, the claimant seeks the following remedies:

• i. A declaration that the property located at 1 Waterworks Crescent, Kingston 8 in the parish of Saint Andrew and registered at Volume 1098 Folio 907 in the Register Book of Titles is the family home of the parties.

• ii. A declaration that the property located at 1 Waterworks Crescent, Kingston 8 in the parish of Saint Andrew and registered at Volume 1098 Folio 907 in the Register Book of Titles is owned by the claimant and the defendant in equal shares of 50% each.

• iii. A declaration that the property located at 72A King Street, Kingston and registered at Volume 937 Folio 158 of the Register Book of Titles is owned by the claimant and the defendant in equal shares of 50% each.

• iv. A declaration that the claimant is entitled to one-half (50%) of all the rental income generated from the property situated at 72A King Street, Kingston since the date of separation November 2016 and that the defendant shall pay to the claimant, the said sums due and owing.

• v. The properties aforementioned are to be valued by a valuator to be agreed by the parties within sixty (60) days of the Court's order. If the parties do not agree to a valuator within fourteen (14) days of this order, then the Registrar of the Supreme Court shall appoint a valuator to value the properties.

• vi. The claimant and the defendant shall bear the cost of the valuation of the properties equally.

• vii. The claimant shall have the first option to purchase the defendant's interest in the family home registered at Volume 1098 Folio 907 in the Register Book of Titles. The said option must be exercised within sixty (60) days of the receipt of the valuation report failing which, the property shall be put on the open market and sold by private treaty or public auction.

• viii. The defendant shall have the first option to purchase the claimant's interest in the King Street property registered at Volume 937 Folio 158 in the Register Book of Titles. The said option must be exercised within sixty (60) days of the receipt of the valuation report failing which the property shall be put on the open market and sold by private treaty or public auction.

• ix. A declaration that the claimant is entitled to forty-eight percent (48%) of the shares allotted in the company known as S.N.H Worldwide Trading Company Limited duly incorporated on the 16 ^th of December 1994, their offices being situated at 34-35 Shannon Drive, Kingston.

• x. A declaration that the claimant is entitled to one-half share of all profits generated by the company aforementioned since the date of separation November 2016.

• xi. The shares in S.N.H Worldwide Trading Company Limited are to be valued and, in the course, thereof, a forensic audit is to be done of the finances of S.N.H Worldwide Trading Company Limited.

• xii. The parties are to agree to a valuator and auditor within fourteen (14) days of the date of the Court's order. The cost of the valuation and forensic audit is to be met by S.N.H Worldwide Trading Company Limited.

• xiii. If no valuator and /or auditor can be agreed upon, one shall be appointed by the Registrar of the Supreme Court.

• xiv. The defendant is given the first option to purchase the claimant's shares owned and entitled to in S.N.H Worldwide Trading Company Limited within ninety (90) days of the presentation of the valuation report, failing which the shares shall be put on the open market and sold by private treaty or public auction.

• xv. The Registrar of the Supreme Court is empowered to sign any and all documents necessary to bring into effect the orders of this Honourable Court if either party is unable or unwilling to do so.

• xvi. Such costs as are incidental to the proceedings.

• xvii. Liberty to apply.

• xviii. Such further and other relief as this Honourable Court may deem just.

PROSA

3 The law in Jamaica before PROSA was similar to the law in Antigua and Barbuda at the time of the Privy Council decision in Abbott v Abbott [2007] UKPC 53 (26 July 2007). That case was an appeal from a decision of the Eastern Caribbean Court of Appeal, involving a dispute between a divorced husband and wife over the beneficial ownership of their former matrimonial home. In describing the state of the law in Antigua and Barbuda, Baroness Hale (as she then was), said at paragraph 2 that: -

“Unlike some other Caribbean countries, Antigua and Barbuda have no equivalent of the wide powers of property adjustment enjoyed by divorce courts in the United Kingdom. Property disputes have therefore to be resolved according to the ordinary law. Nevertheless, the inference to be drawn from the conduct of the husband and wife may be different from those to be drawn from the conduct of parties to more commercial transactions”.

The ordinary law referred to by the learned judge, included common law presumptions, the law of resulting and constructive trusts and the various presumptions aligned to those trusts.

4 PROSA was described by Cooke JA in Annette Brown v Orphiel Brown, [2010] JMCA 12, as a “dramatic break from the past” in respect of property adjustments between spouses on the termination of cohabitation or the dissolution of marriage. PROSA is indeed revolutionary in its scope and effect. It introduced the concept of the “family home” in which each spouse is entitled to an equal share; and gives the court wide discretionary powers in respect of property “other than” the family home. PROSA also replaced the common law and equitable presumptions with its own provisions. Brooks JA in Carol Stewart v Lauriston Stewart [2013] JMCA Civ 47, said at paragraph 22 in relation to PROSA that:-

“An examination of the Act must … bear in mind the absence of previously existing common law and equitable presumptions.

In Donna Marie Graham v Hugh Anthony Graham, unreported decision delivered April 8, 2008, McDonald Bishop J (as she then was), on examining PROSA said that the object of the legislation is to attain fairness in property adjustments on the separation of the parties or the end of the marriage. I must acknowledge, of course, that PROSA also applies to couples who have not been legally married but who have cohabited in a common law union for at least 5 years.

5 Section 6 of PROSA which creates the equal share rule, provides as follows: -

“6 – (1). Subject to subsection (2) of this section and sections 7 and 10, each spouse shall be entitled to one-half share of the family home-

• a) on grant of a decree of dissolution of a marriage or the termination of cohabitation;

• b) on the grant of a decree of nullity of marriage;

• c) where a husband and wife have separated and there is no likelihood of reconciliation.

(2). Except where the family home is held by the spouses as joint tenants, on the termination of marriage or cohabitation caused by death, the surviving spouse shall be entitled to one-half share of the family home “.

6 Section 7 provides the circumstances under which a court may vary the equal share rule where the court considers that it is unreasonable or unjust for each spouse to be entitled to one-half of the family home. The circumstances listed in the section are however not a closed set of factors. This means that the legislature left the court with a discretion to vary the equal share rule where, having regard to the circumstances in any given case, it is unreasonable or unjust to apply it. The factors included in the section are where the family home was inherited by one spouse; where it was already owned by one spouse at the time of the marriage or the...