Kareen Christie v Ernest Alphanso Turnbull
| Jurisdiction | Jamaica |
| Judge | T. Hutchinson, J |
| Judgment Date | 13 March 2020 |
| Docket Number | CLAIM NO. 2016 HCV 01439 |
| Date | 13 March 2020 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ 57
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2016 HCV 01439
Mr. Obika Gordon instructed by Frater Ennis and Gordon for the Claimant
Miss Rochelle McNeil instructed by McNeil and McFarlane for the Defendant
Effective date of separation — discussion on application for leave to apply for extension — effect of other property owned by relevant party — is application negatively impacted when wrong procedure used within 12 month period — assessment of contribution of parties to acquisition.
T. Hutchinson, J (AG.)
The matter before me is an Amended Fixed Date Claim Form and Affidavit in support in which the Claimant is seeking the following orders;
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1. A declaration that the Claimant Kareen Christie of 32 Marine Garden, Ocho Rios Post Office in the parish of Saint Ann is the spouse of the Defendant Ernest Aplhanso Turnbull of 32 Marine Garden, Ocho Rios Post Office in the parish of St. Ann.
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2. A declaration that the Applicant is entitled under and by virtue of the Property Rights of Spouses Act 2004 to one half interest in property located at 32 Marine Gardens, Ocho Rios Post Office in the Parish of St. Ann comprised in Certificate of Title registered at Volume 1111 Folio 19 of the Register Book of Titles. An order that a valuation of the said lands be done by a Valuator to be agreed between the parties or in the absence of such agreement by a Valuator appointed by the Court.
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3. An order that the costs of any valuation undertaken in respect of the said lands be borne by the parties equally.
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4. An order that the Defendant be allowed to purchase the Claimant's interests in the said lands.
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5. In the alternative an order that the said lands be sold on the open market and that the net proceeds be divided between the parties in accordance with their interests.
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6. An order that the Claimant's Attorney-at-law have carriage of sale.
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7. An order in the event the Defendant refuses to sign any document relevant to the transfer of said property the Registrar of the Supreme Court ne empowered to execute all such documents on the Defendant's behalf.
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8. A declaration that the Claimant is the sole owner of the 1992 Toyota Cressida motor vehicle bearing registration number 3507 DB.
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9. A Declaration that the Claimant is entitled to 1/2 interest in Toyota Hiace registration number PP982J, Toyota Corona registration number 0528FL, Toyota Coaster registration PE 22304 and Toyota Corona registration 1269GR.
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10. An order that the Defendant signs all documents necessary to effect transfer of the said motor vehicles and in the event the Defendant refuses to sign any document relevant to the transfer of the said motor vehicles the Registrar of the Supreme Court be empowered to execute all such documents on the Defendant's behalf.
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11. An order that the Defendant be allowed to purchase the Claimant's interest in the said motor vehicles, in the alternative an order that the said motor vehicles be sold on the open market and the net proceeds be divided between the parties in accordance with their interests.
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12. An injunction restraining the defendant whether by himself or his servant and/or agent from transferring or otherwise dealing with the said properties in any way prejudicial to the interest of the Claimant.
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13. Such further and other relief as this Honourable Court deems just.
The orders sought in the Fixed Date Claim Form have previously been requested of the Court in a Claim Form filed on the 11th of April 2016 and pursuant to the directive of the Court the claim was subsequently refiled by way of a Fixed Date Claim Form which was later amended.
In respect of the orders outlined, it is noted that the status of the parties underwent a significant change in August 2016 as the Defendant got married to someone else. Additionally, in the course of the trial it was indicated that Order 8 was no longer in issue as the Defendant was prepared to consent to that Order being made.
The case for the Claimant is that she met the Defendant in 1985 and commenced an intimate relationship with him. In 1986 she moved in with him at his residence in Content Gardens, Ocho Rios, St Ann and they commenced living as husband and wife. In 1993, the house located at 32 Marine Gardens, Ocho Rios, St Ann, the subject of this claim was purchased for the sum of $500,000 of which she said she contributed $25,000 from her savings account at National Commercial Bank. She deponed that when this money was given by her to the Defendant he assured her that her name would be added to the title but this was never done.
Ms. Christie outlined that in addition to the initial sum provided towards the purchase price, she covered the cost of the utilities, grocery and other household expenses while the Defendant paid the mortgage. She also stated that they both contributed towards the maintenance of the property as it was the family home. In addition to this, Ms Christie said she contributed towards the improvement of the property and the furnishings, details of which she gave in her affidavit.
It was also outlined by Ms. Christie that during the course of the relationship, she had a son for the defendant and he assisted in raising her daughter who was the child of a previous relationship. She exhibited the birth certificate of their son in support of her claim and it is noted than when the child was born in February 1994 both indviduals gave their address as 32 Marine Gardens. In respect of the motor vehicles in question, Ms. Christie deponed that up to 1998 all 4 vehicles had been purchased by herself and the Defendant and were operated as taxis and for tours. She stated that up to the time the relationship ended in 2016 she had been living with the Defendant as his spouse for 31 years and they had been single at the time they became involved.
She averred that in the course of their relationship she was a joint account holder on accounts that the Defendant maintained at Bank of Nova Scotia and Royal Bank of Trinidad and Tobago. She also noted that she performed wifely duties for the Defendant from the start of their relationship up to when it ended in 2016. She also stated that even after the Defendant's marriage in August 2016 they continued to engage in a sexual relationship.
In outlining the circumstances that led to her filing this claim she stated that the relationship between the Defendant and herself had deteriorated as he began to demand that she move out of the house as he was now involved with someone else. She also stated that he began to make threatening remarks to her. It was in these circumstances she said that she made a decision to file a claim to protect her interest in the property.
She denied that the house was purchased solely from funds provided by the Defendant combined with a mortgage sourced by him, she also denied that the relation between them had ended in 2005 when the Defendant moved into a separate bedroom. Or that a separate dwelling house been constructed by her with the Defendants assistance. In relation to that property which is located in Lydford, St Ann she has asserted that although her name is on the title it is there as Joint Tenants along with her mother for whom the land was purchased and the house was built solely as her mother's residence.
Under cross examination it was accepted by her that she did not personally participate in the purchase of the property all the steps were taken by the Defendant. She also acknowledged that she did not know the cost of the individual vehicles neither did she know if the Defendant had borrowed money to assist with their purchase. She also accepted that the Defendant no longer had any of the buses acquired up to 1998 as these had been changed for newer vehicles. Under further cross examination she insisted that the buses from that period were still in the Defendant's possession. She maintained however that she had made a financial contribution to the purchase of the replacement vehicles.
She acknowledged that at one point both her and the defendant were occupying two separate rooms but stated that this was only for a week. In relation to his spouse she acknowledged that the Defendant had been cheating on her for years but she pnly became aware of that individual in July 2016. She acknowledged that at the time she filed the original claim in April 2016 the Defendant was engaged but she said this was not the first time.
As part of her case, the Claimant relies on the affidavit of her daughter Charlene Vassell. In her account Ms Vassell outlined that she has known the Defendant ever she was two years old and she said this was in or about 1985 when her parents first got together. She stated that they lived at 108 Marine Street for 8 years before moving to the disputed property in 1993. She said that they lived as a family there up to 2012 when she migrated.
She also deponed that when the Defendant's mother fell ill she moved into the house and became a part of the family and lived there with them until her passing in March 2014 which she sought to confirm by way of a funeral programme attached.
Under cross examination she stated that she lived with her grandmother on Main Street in her younger years up to age 12. She told the Court that she was born December 1983. She added that in respect of her mother she was back and forth between the grandmother's house and that of the Defendant.
In respect of her assertion that the family had a tour and taxi operation she stated that while she knew this she personally never participated in it as she was a child.
In his account while Mr. Turnbull accepted that he met the Claimant in 1985 he insisted that they did not begin...
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