Jeniffer Johnson v Horace Boswell
| Jurisdiction | Jamaica |
| Judge | Edwards JA,D Fraser JA,G Fraser JA |
| Judgment Date | 23 September 2022 |
| Neutral Citation | JM 2022 CA 97 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2019CV00075 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA Civ 31
THE HON Miss Justice Edwards JA
THE HON Mr Justice D Fraser JA
THE HON Mrs Justice G Fraser JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2019CV00075
IN THE COURT OF APPEAL
Mrs Denise Senior-Smith instructed by Oswest Senior-Smith & Company for the appellant
Hopeton Henry instructed by Hopeton C D Henry & Associates and Ms Kimberly Taylor for the respondent
I have read in draft the judgment of my sister G Fraser JA (Ag) and I agree with her conclusion. I have nothing further to add.
I too have read in draft the judgment of my sister G Fraser JA (Ag) and I agree with her reasoning and conclusion.
G Fraser JA (AG)
This is an appeal against the decision of Nembhard J (Ag) (as she then was) (‘the learned judge’) made on 7 February 2019 declaring that, the respondent, Mr Horace Boswell has an 80% and the appellant Miss Jeniffer Johnson a 20% legal and beneficial interest, respectively, in premises located at Lot 5, White River, in the parish of Saint Ann being land comprised in certificate of title registered at volume 1172 folio 45 of the register book of titles (‘the subject property’). The learned judge made this declaration notwithstanding the endorsement on the certificate of title that both parties held the subject property as “Tenants-in-Common in equal shares.” In addition, the learned judge also made other consequential orders.
The circumstances and allegations of the respondent which led to the request for the court's intervention are best relayed by way of background information concerning the interaction between the parties, which I will now briefly outline.
The undisputed evidence is that the parties met in 2004 and, about a year later, began an intimate relationship. The parties were in a visiting union as the respondent resided and worked in Canada and the appellant resided and worked in Jamaica. During the currency of the relationship, the respondent would periodically visit the appellant on his vacations to Jamaica, and he would stay with her at her rented premises.
As the relationship advanced, the parties decided to purchase a house. The appellant was tasked with finding a suitable house, which she subsequently did. In 2008, the subject property was purchased for $8,000,000.00 and a mortgage was obtained from Jamaica National Building Society (‘JNBS’) in the amount of $6,000,000.00. The parties were registered as “[t]enants-in-common in equal shares” on the certificate of title. After acquiring the subject property, the appellant commenced major repairs and received financial contributions from the respondent to effect these repairs.
Unfortunately, sometime after purchasing the subject property, the relationship between the parties soured and eventually came to an end. Thereafter, the parties' interests in the subject property became an issue of contention. This resulted in the respondent commencing proceedings in the Supreme Court challenging the appellant's legal and beneficial entitlement to equal shares in the subject property.
Initially, the respondent had filed a fixed date claim form on 17 February 2016, which was supported by affidavit evidence. In the claim, he had asked that “the Court determines the extent and degree of proprietary interest owned by [the respondent] and [the appellant] in the Property…”. At the time he sought to proceed under the Property Rights of Spouses Act (‘PROSA’). Almost two years later on 8 January 2018, the respondent changed the claim to one resonating in equity. He accordingly filed an amended fixed date claim form along with a supplemental affidavit in support in which he sought several orders from the court. The question for the court's determination was whether the respondent was “fully entitled to the legal estate or all the proprietary interest” in the subject property under the principle of constructive trust, notwithstanding that the appellant's name was endorsed on the certificate of title as a tenant-in-common with an equal share. Alternatively, he sought the court's determination of the question of whether the appellant was entitled to any legal or proprietary interest in the subject property. He also sought a specific order that he was entitled to no less than 80% legal and beneficial interest in the subject property.
The factual matrix of this case is indeed a unique one because although the appellant and respondent were in a relationship at all material times between 2005 and 2014, the parties were neither spouses by marriage nor by common law, and therefore, the claim does not fall to be determined under the aegis of PROSA. However, a visiting relationship is a well-recognized form of relationship in this country and a term with which our Family Courts are quite familiar. For that reason, the court's equitable jurisdiction is appropriate in determining questions relating to a beneficial interest in the subject property.
The dispute concerning the subject property involves a house in which the appellant had been resident since its purchase, with the knowledge and apparent support of the respondent. The respondent although domiciled abroad, would visit and spend time with the appellant at the subject property during his annual vacation period. The appellant averred that there was a common intention for the house to be used as a home, not only for herself but for the respondent as well. The respondent on the other hand had initially testified that he had intended to make the house his residence after his retirement and on his repatriation to Jamaica. However, in cross-examination for the first time since he filed suit in 2016, he averred that he had intended to utilize the subject property in a commercial enterprise and operate it as a “bed and breakfast”.
The respondent had sworn to a number of affidavits. Apart from the affidavits filed 17 February 2016 and 8 January 2018 in support of his fixed date claim form and amended fixed date claim form respectively, he also filed two affidavits in response to the appellant and one in response to her daughter on 3 August 2017. These were allowed to stand as the amalgam of his evidence in chief.
In his affidavit evidence the respondent averred that he took a decision to purchase a residential property. He identified the subject property which was offered for sale at the price of $8,000,000.00. He gave instructions to his attorney-at-law and provided him with a deposit. He caused the appellant's name to be “added to the Duplicate Title for reason that I loved and trusted her and believed that out of convenience it was necessary for such addition to be made as I do not live in Jamaica”. The respondent categorically averred that he was solely responsible for obtaining and funding the mortgage which he would send to the appellant via Western Union Money Transfer. He further stated that the appellant did not contribute to the deposit or the mortgage payments.
The respondent, in his affidavit evidence, further indicated that the mortgage payments were not being made by the appellant and he was informed by JNBS that the mortgage was in arrears. It was as a result of this “duplicity”, that he decided in or about July 2014 to send the monthly mortgage payments directly to JNBS. Further, the respondent asserted that he was unaware of the appellant making mortgage payments out of her pocket or income as they never had any such discussion or arrangement.
The respondent further deposed that after the purchase of the subject property, the appellant started to treat him badly, in that she would not answer his calls, refused to visit him in Canada and allowed her adult children to move into the subject property. He also stated that although he was living in Canada he would visit the subject property but as time progressed, he began to feel unwelcomed and intimidated by the appellant's adult children, hence, his reason for no longer visiting the subject property.
In terms of the mortgage payments, the respondent outlined that the monthly instalments were between $48,000.00 and $55,000.00 and that he was the one paying the mortgage since its inception. The respondent staunchly denied that he had informed the appellant that they would own a home together and denied that she provided any National Housing Trust (‘NHT’) contributions, as there was no such discussion about her contribution nor was there any indication that such was used in the purchase of the subject property. He further contended that the appellant was unemployed at the time the deposit was paid on the subject property and he was unsure whether she would have qualified for any NHT assistance, in any event.
In cross-examination, the respondent denied that at all material times, from 2005 until after 2008, the appellant was employed as an Office Administrator. He, however, agreed that:
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i. She was employed at Northern Cable Network Limited during the time of the purchase.
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ii. She told him that she ran errands during her lunch break to get papers for the property.
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iii. Both parties own the property as tenants-in-common in equal shares.
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iv. They were both to benefit equally from the Title.
The respondent also agreed that the appellant was the principal actor or had substantially participated in activities on which he commented in his evidence, as follows:
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i. Identifying and locating the subject property; to which he said “I agree that it was important that both of us liked the house that was being purchased”.
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ii. Signing the agreement for sale and transfer document along with him; to which he said she “purchased the house with me”.
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iii. Sending documents to him in Canada to sign; to which he said she was the only party physically present in...
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